Terrorism and the Constitution
Sacrificing Civil Liberties
in the Name of National Security
by David Cole and James
X. Dempsey
The New Press, 2002, paper
p1
The record of our nation's response to the threat of political
violence is unfortunately one of repeated infringements on the
First Amendment and other constitutional principles. As the Supreme
Court itself has acknowledged, "History abundantly documents
the tendency of Government-however benevolent and benign its motives
-to view with suspicion those who most fervently dispute its policies."
This is by no means a problem unique to the United States, but
unfortunately our constitutional commitment to political and religious
freedom has not protected us from recurring official abuses.
With confounding regularity, our government has, in the name of
protecting national security, subverted the very rights and liberties
"which make the defense of the Nation worthwhile."
The Federal Bureau of Investigation,
our nation's premier law enforcement agency, has the central role
in fighting terrorism at home. It brings to this task impressive
resources, significant legal powers, and a jurisdiction that even
extends overseas. In recent years, the Bureau has penetrated and
prosecuted a bewildering array of organized criminal groups. It
has pursued public corruption at all levels of local, state and
federal government, while demonstrating a resistance to the kinds
of corruption that have sometimes plagued police forces at the
municipal level or in other countries. It has successfully investigated
terrorist acts at home and abroad.
Yet this same FBI has throughout its
history all too often violated First Amendment rights of freedom
of speech and association. In the name of national security, it
has undertaken the disruption and "neutralization" of
peaceful protest. It has devoted resources to monitoring political
activity rather than focusing on the investigation of criminal
conduct. It has relied on sweeping theories of guilt by association
rather than undertaking the harder but more productive work of
identifying those individuals who are planning violent activity.
It has resisted public accountability and limits on its discretion.
In the wake of the first bombing of
the World Trade Center in 1993, and the bombing of the federal
building in Oklahoma in 1995, Congress enacted the Antiterrorism
Act of 1996,4 one of the worst assaults on the Constitution in
decades. It resurrected guilt by association as a principle of
criminal and immigration law. It created a special court to use
secret evidence to deport foreigners labeled as "terrorists."
It made support for the peaceful humanitarian and political activities
of selected foreign groups a crime. And it repealed a short-lived
law forbidding the FBI from investigating First Amendment activities,
opening the door once again to politically focused FBI investigations
p4
Once again, we are faced with undocumented claims that surrendering
liberty will purchase security. Weekly, we see new measures proposed
that run counter to fundamental constitutional principles: military
tribunals, alien detentions, invasions of the attorney-client
relationship, increased secrecy. And in the PATRIOT legislation
adopted in October 2001, Congress expanded government surveillance
powers, changed the domestic posture of the Central Intelligence
Agency, and broadened the discretion of the executive branch to
detain aliens indefinitely based on their associations and beliefs,
rather than their acts.
p6
A special Senate committee chaired by Idaho Democrat Frank Church
(the "Church Committee") in 1975 and 1976 found that
the FBI had conducted a wide-ranging campaign of monitoring and
disrupting political groups that were not engaged in illegal conduct."
At the peak of its efforts, the FBI was investigating all major
protest movements, from civil rights activists to Vietnam war
protesters to women's liberation advocates. Standard FBI methodology
included bugging of homes and offices, wiretapping, break-ins,
and informants. In addition, the FBI sought to spread misinformation,
foment internal dissension, and even l provoke illegal activity.
The effort consumed tremendous resources and , sowed distrust
and fear among many seeking peaceful change in government policies,
but it produced little evidence of criminal conduct.
p10
The adoption of the Antiterrorism Act of 1996 showed how little
had been learned from the abuses of the past and how alluring
remained the concept of unrestrained intelligence investigations
focused on political ideology. The Act's explicit criminalization
of support for peaceful activity effectively authorized FBI surveillance
and infiltration of political, religious and ethnic groups engaged
in peaceful humanitarian and political work. Its repeal of a prohibition
against using First Amendment activities as the sole basis for
an investigation further encouraged politically motivated investigations.
Its reintroduction of guilt by association into the immigration
laws allowed the exclusion and deportation of immigrants and foreign
visitors not for what they have done but for the causes and groups
with which they have associated. And the endorsement of secret
evidence in immigration proceedings against alleged "terrorists"
denied the most fundamental of rights - the right to defend oneself
by confronting one's accusers.
p14
... angry criticism of government as healthy to a democratic society
and constitutionally protected.
p15
Much of the FBI's efforts, however, and much of the 1996 Antiterrorism
Act and the immigration provisions of the 2001 PATRIOT Act focus
not on acts of violence but on the political or religious ideology
that motivates them.
p16
Political freedom is a society's safety valve, allowing the passionately
critical a nonviolent way to express their dissatisfaction with
the status quo. Dissent is the mechanism for initiating social
change.
p21
In 1981, the Justice Department ordered the FBI to determine whether
the Committee in Solidarity with the People of El Salvador (CISPES)
was an agent of a foreign power, that is, whether it was controlled
or directed from abroad and thus required to register and disclose
information about its finances under the Foreign Agents Registration
Act (FARA). CISPES was a U.S.-based organization, composed largely
of U.S. citizens, many of them college students. It opposed U.S.
aid to the military of El Salvador and openly supported the aims
of the Frente Democratica Revolucionario (FDR), the political
organization for the rebel groups in El Salvador. The organization
acknowledged that it had contact with FDR leaders, and that it
had provided funding for humanitarian activities in El Salvador.
After a brief investigation, the FBI advised the Justice Department
that there was no substantiation for the concern that CISPES was
a foreign agent. Rather, the FBI told the Justice Department,
CISPES appeared to be an independent, domestic group engaged wholly
in lawful, nonviolent political activities.
Nonetheless, in March 1983, the FBI
opened an international terrorism investigation of CISPES.
p30
The interchangeable use of "leftist" and "terrorist"
has deeper significance. The central theme of FBI political investigations
from the Bureau's inception through the middle 1980s was the threat
of a worldwide Communist takeover. The investigation of Martin
Luther King, for example, was nominally begun on the grounds that
Communists were among his close advisors. Even the attempted deportation
of the "LA 8" in 1987 ... was based on their alleged
membership in a group that supported Communism. As the Soviet
Union collapsed, however, Communism ceased to be a guiding principle
for FBI counterintelligence investigations. Terrorism emerged
as the new threat to which government officials pointed when claiming
that a surrender of liberty was necessary to purchase security.
The CISPES case was part of this transition from "Communism"
to "terrorism" as the continuing justification for the
special legislative authority and broad national security powers
that the FBI had grown accustomed to during the Cold War.
p33
... 1996 Antiterrorism Act ... adopted a "support for terrorism',
provision that essentially legalized the FBI's approach in the
CISPES investigation, by making it a federal crime to support
the legal activities of designated foreign terrorist groups.
p49
The FBI investigations in the 1980s against activists in the Central
American solidarity movement and persons of Arab descent were
not isolated incidents. The FBI's tendency to focus on political
activity and guilt by association infected its investigations
across a broad spectrum, involving not only activities with a
foreign nexus but also purely domestic ones.
p73
COINTELPRO-TO DISRUPT AND NEUTRALIZE
The legal regime established under
Presidents Roosevelt, Truman and Eisenhower set the stage for
the worst abuses in the FBI's history, and eventually led to more
comprehensive efforts at reform. Boosted by enactment of the anti-Communist
Internal Security Act of 195O, the FBI undertook an intensive
campaign aimed at suspected Communists, working in tandem with
Senator Joseph McCarthy and the House Unamerican Activities Committee
(HUAC). HUAC, the Senate Internal Security Subcommittee, and state-level
"little HUACs" depended heavily on the FBI for information.
The committees were obsessed with membership, drawing up lists
of names and constructing links among organizations. Targets of
the committee were confronted with information from informers,
but had no opportunity to cross-examine their accusers and no
access to evidence in the possession of the FBI that would assist
their defense. Those who refused to testify by invoking the Fifth
Amendment often lost their jobs and were ostracized from their
communities. Those who refused to testify by invoking their First
Amendment rights of expression and association-Frank Wilkinson
was one - were punished with prison sentences for contempt of
Congress.
In 1956, the FBI brought many of its
domestic spying operations under the formal designation of "COINTELPRO"
(COunterINTELligence PROgrams). Their express goal was to "disrupt,"
"discredit" and "neutralize,, domestic protest
groups. As the Church Committee later explained, "The origins
of COINTELPRO [were] rooted in the Bureau's jurisdiction to investigate
hostile foreign intelligence activities on American soil.""
With the opening in 1961 of a COINTELPRO program against the Socialist
Workers Party, a purely domestic group, the effort lost any pretense
of being directed against foreign-controlled groups. Programs
against the Ku Klux Klan, civil rights groups, and the "New
Left" followed. Over the course of fifteen years between
1956 and 1971, in the words of the Church Committee, "the
Bureau conducted a sophisticated vigilante operation aimed squarely
at preventing the exercise of First Amendment rights of speech
and association, on the theory that preventing the growth of dangerous
groups and the propagation of dangerous ideas would protect the
national security and deter violence."
p75
The investigation of the Socialist Workers Party was another typical
COINTELPRO operation. From 1961 to 1976, the FBI used 1300 informants
in the investigation, who supplied the Bureau with detailed reports
on S~ P debates and activities, as well as at least 12,600 pilfered
SWP documents. FBI agents themselves conducted 204 illegal break-ins
("black bag jobs") against the SWP, removing or copying
an additional 9864 documents. The FBI conducted 20,000 days of
telephone wiretaps and maintained bugs in SWP offices for the
equivalent of 12,000 days. It conducted aggressive interviews
of SWP members and their relatives, neighbors and employers, which
an FBI memorandum at the time said were intended to "enhance
the paranoia" of members. The explicit purpose of the investigation
was the disruption of the SWP The FBI sought to create hostility
and racial discord within the organization, to frustrate its efforts
to form alliances with other groups, and to cause certain members
to lose their jobs. '~ The investigation was doggedly pursued
even though none of the 1300 informants ever reported a single
instance of planned or actual espionage, violence, terrorism,
or other illegal activities, and even though the investigation
did not result in a single arrest for any federal violation. In
fact, informants routinely reported that the SWP was a peaceful
organization.
COINTELPRO also involved extensive
surveillance of anti-Vietnam War demonstrations and campus protests,
broad informant reporting, break-ins, warrantless wiretaps, infiltration
of nonviolent civil rights groups and legal organizations supporting
them, and efforts to get teachers fired, to prevent targets from
speaking, to block the distribution of newsletters, and to disrupt
peaceful demonstrations and meetings. Among the FBI's targets
was Dr. Martin Luther King. The techniques to achieve these goals
``ranged from the trivial (mailing reprints of Reader's Digest
articles to college administrators) to the degrading (sending
anonymous poison-pen letters intended to break up marriages) and
the dangerous (encouraging gang warfare and falsely leading the
members of a group to believe that one of their own was a police
informer)."
Throughout COINTELPRO, the FBI undertook
activities knowing they were illegal or without legal support.
In an extreme case, the FBI encouraged the violent raid by Chicago
police that resulted in the killings of two Black Panthers, Fred
Hampton and Mark Clark.'
POST-COINTELPRO REFORMS AND THEIR LIMITATIONS
Public and Congressional outrage over
the abuses of COINTELPRO prompted efforts to reform FBI operations,
particularly as they affected political spying. Measures specific
to the FBI were accompanied by reforms directed at the entire
national security apparatus. The Congressional budget process
was reformed to give Congress annual opportunities to use the
purse strings to control executive agencies. Congressional oversight
of the FBI and the foreign intelligence agencies was established.
The Senate created the Select Committee on Intelligence in 1976
and the House established its counterpart in 1977.'7 President
Ford issued a public Executive Order on intelligence activities,
replacing the secret directives, orders and statements on which
Hoover had based his domestic intelligence operations. Congress
strengthened the Freedom of Information Act, with the intent of
ensuring more effective judicial review and making information
about the national security programs of the government more accessible.
In the Pentagon Papers case, the Supreme Court ruled that the
press could not be stopped from publishing classified national
security information. The Supreme Court also ruled that U.S. citizens
could not be wiretapped in the name of national security without
a court order, and Congress responded by enacting the Foreign
Intelligence Surveillance Act (FISA), requiring a court order
for electronic surveillance undertaken in the name of national
security. Attorney General Edward Levi adopted guidelines spelling
out publicly for the first time the standards for opening and
conducting domestic security investigations. And the Justice Department
successfully prosecuted two FBI officials who had ordered black
bag jobs in the course of COINTELPRO investigations.
Some of these reforms had a lasting
impact. Even before the Attorney General guidelines were adopted,
there was a sharp decline in he number of FBI domestic security
investigations, and the guidelines enforced and institutionalized
the trend. The revised FOIA resulted in the public disclosure
of substantial information. The Congressional Committees established
reporting requirements on the use of intrusive techniques such
as undercover operations.
The reforms, however, were incomplete.
Part of the problem lies in the continuing secrecy that precludes
public accountability. For example, while the FBI budget is largely
public, the specific funding for the Bureau's counterintelligence
and counterterrorism programs is obscured in more general categories.
Nor are the budgets for the CIA, the National Security Agency,
or the other foreign intelligence agencies subjected to public
scrutiny and debate; while the total aggregate budget for foreign
intelligence has recently been made public after a FOIA lawsuit,
all further details remain secret. The guidelines limiting counterintelligence
and international terrorism investigations also are classified
secret in large part.
Another reform that was never undertaken,
contrary to the recommendations of the Church Committee, was the
adoption of "charter" legislation to define the FBI's
powers and responsibilities. consequently, the main source of
the FBI's counterintelligence authority is still an executive
directive without judicially enforceable standards. The FBI continues
to claim authority to investigate legal activities of United States
citizens.
Moreover, some of the reforms have
been reversed. President Ronald Reagan, soon after taking office,
pardoned the two FBI agents convicted for their role in illegal
COINTELPRO burglaries. President Reagan's Justice Department rewrote
the Attorney General domestic security guidelines to expand authority
for collecting information on political activities. He issued
a new Executive Order 12333 on intelligence activities, which
was scarcely less ambiguous than the directives issued by Roosevelt
(the concept of "subversive activities" was supplanted
by "international terrorist activities," a term similarly
left undefined). The Reagan Administration interpreted the FOIA
narrowly, especially as it applied to the FBI and the intelligence
agencies, and the courts in many cases deferred to Executive Branch
decisions to withhold documents. In 1984, Congress amended the
FOIA to exempt whole categories of CIA files from review, and
in 1986, it amended the FOIA again to codify the Reagan Administration's
restrictive reading of the law.
Still other reforms were not as far-reaching
as expected. Thus, while national security wiretaps are no longer
conducted illegally, the secretive court set up under the Foreign
Intelligence Surveillance Act of 1978 to review government requests
for wiretapping authority in national security cases has never
denied a single one of the thousands of requests for electronic
surveillance presented to it since its creation ...
p89
The history of the FBI has been one of an ongoing struggle between
control and discretion, between efforts to limit monitoring of
political dissent and efforts to preserve or extend FBI powers.
Periods in which measures were adopted to control the FBI have
been followed by efforts to repeal those limitations, to redefine
them, or to expand powers in new areas.
In the 1940s, Presidential orders gave
the FBI broad powers in the name of fighting subversion. From
the 1950s through the 1970s, those powers were maintained and
exercised in the name of fighting Communism. Following public
disclosure of the COINTELPRO program and the abuses documented
by the Church and Pike Congressional committees, the FBI came
under new restrictions intended to limit its investigations of
political activities. However, the reforms were limited and fragile.
In the 1980s and 1990s, FBI powers were again extended. In the
name of foreign counterintelligence and antiterrorism, the FBI
continued to insist upon the authority to investigate legal activity
that had a foreign nexus. The nationwide investigation in the
early 1980s of peaceful activists opposing U.S. policy in Central
America led to further criticism and reform... the antiterrorism
statutes of 1996 and 2001 have brought us full circle again, codifying
guilt by association and making illegal the support of legal activities
of certain foreign groups. As we enter 2002 engaged in a global
struggle against terrorism, the FBI's powers to engage in political
spying remain largely unrestricted by statute or executive regulation.
p91
The activities of the FBI are subject, of course, to constitutional
constraints. The First Amendment's free speech and association
guarantees, the Fourth Amendment's protection against unreasonable
searches and seizures, and the Fifth Amendment's due process guarantee
and its privilege against compelled self-incrimination impose
limits on the FBI and other agencies.
p107
On February 10, 1995, senior Democrats introduced the Clinton
Administration's counterterrorism bill in the Senate and in the
House of Representatives.' With the exception of habeas corpus
"reform" provisions added subsequently, the Clinton
proposal included all the critical elements of the antiterrorism
law enacted one year later: it established a special court that
would use secret evidence to deport noncitizens accused of association
with terrorist groups; it gave the Executive Branch the power
to criminalize fundraising for lawful activities conducted by
organizations labeled "terrorist;" it repealed the Edwards
amendment, which prohibited the FBI from opening investigations
based on First Amendment activities; and it resurrected the discredited
ideological visa denial provisions of the McCarran-Walter Act
to bar aliens based on their associations rather than their acts.
The bill also included provisions to create a new federal crime
of terrorism, carve further exceptions in the time-honored posse
comitatus law barring the U.S. military from civilian law enforcement,
expand use of pre-trial detention, and loosen the rules governing
federal wiretaps.
The story of the Act's passage shows
how easily civil liberties and constitutional principles can be
cast aside under the influences of emotion and political posturing.
The lessons of past FBI abuses from COINTELPRO through the CISPES
investigation were ignored. The voices of likely victims of the
statute's ideologically-based approach were never heard from,
while those who opposed the legislation on the grounds that it
was unnecessary or dangerously unconstitutional were marginalized.
Instead, two incidents-the 1993 bombing of the World Trade Center
and Timothy McVeigh's attack on the federal building in Oklahoma
City-overwhelmed all rational discussion, and the law was enacted
as an effort to do something in response to these two crimes.
The fact that suspects were arrested soon after both incidents
and later convicted, and the fact that the government could point
to nothing in the Act that would have prevented or made it easier
to prosecute either incident, proved irrelevant.
LONG SOUGHT AND LONG REJECTED
The most troubling provisions in the
1996 Anti-Terrorism Act- the resurrection of association as grounds
for exclusion and deportation of noncitizens; the ban on supporting
lawful activities of groups labeled "terrorist" by the
Executive Branch; and the secret evidence provision- were developed
long before the bombings that triggered their final enactment.
In the case of guilt by association,
the Clinton proposal making mere membership in a terrorist group
grounds for exclusion and deportation represented a return to
the intolerant approaches of the 1950s. The McCarran-Walter Act,
passed in 1952, made association with Communist or anarchist groups
a ground for exclusion and deportation, and was used over the
years against such luminaries as Gabriel Garcia Marquez, Graham
Greene, Carlos Fuentes, Czeslaw Milosz, Yves Montand, and Charlie
Chaplin. In 1990, with much fanfare, Congress removed most of
the ideological grounds for exclusion and deportation from the
immigration law. But in the Clinton bill, they reappeared in the
guise of a bar on anyone believed to be a member of a "terrorist
organization."
p115
Eager to get the bill on the President's desk by the April 19
anniversary of the Oklahoma City bombing, the Senate adopted the
conference report on April 17 in a 91-8 vote. The next day, the
House also adopted the report by a vote of 293-133. On April 24,
the President signed the Antiterrorism and Effective Death Penalty
Act of 1996.
p117
The Antiterrorism and Effective Death Penalty Act of 1996 contained
what were, prior to the 2001 antiterrorism measures, some of the
worst assaults on civil liberties in decades. The Act was wide-ranging,
dealing with everything from the making of plastic explosives
to trading in nuclear materials. But it also attacked basic First
Amendment and due process rights.
p118
OVERVIEW
The Act made it a crime for citizens
and noncitizens alike to provide any material support to the lawful
political or humanitarian activities of any foreign group designated
by the Secretary of State as "terrorist." Thus, the
Act reintroduced to federal law the principle of "guilt by
association" that had defined the McCarthy era. People can
be punished, the Act says, not for what they do or abet, but for
supporting wholly lawful acts of disfavored groups. If this law
had been on the books in the 1980s, it would have been a crime
to give money to the | African National Congress during Nelson
Mandela's speaking tours here, because the State Department routinely
listed the ANC as a "terrorist group."
This fundraising provision appeared
to codify the focus on political ideology and association that
had prompted the FBI's most intrusive investigations of political
activists from COINTELPRO to CISPES. It gave the FBI reason to
investigate any group or individual that supports even the wholly
lawful activities of a designated foreign organization. The Act
further encouraged politically-focused investigations by repealing
the Edwards amendment, which had barred the FBI from opening or
expanding investigations solely on the basis of First Amendment-protected
activities.
Reversing another reform that had been
years in the making, the Act revived the practice of denying visas
to foreigners based on mere membership in undesirable groups,
in this case, the same groups designated "terrorist"
by the Secretary of State. Congress repudiated such ideological
exclusions (another form of guilt by association) in its 1990
reform of the immigration laws. The 1996 Act's provisions, however,
allow exclusion based on membership alone, without any showing
that the individual furthered any illegal acts of the group. Since
an alien who was inadmissible at the time of entry is thereafter
deportable, the change also gave the government grounds to deport
a person who was a member of a designated organization at the
time of his otherwise legal entry into the United States.
The Act also created an unprecedented
"alien terrorist removal procedure" designed to deny
immigrants facing deportation the most basic of due process protections-the
right to confront their accusers. Under this provision, the government
claims the authority to deport an alien alleged to be a terrorist
without ever telling her the source of the evidence against her,
a tactic that the courts have repeatedly ruled violates due process.
Demonstrating the vulnerability of
all rights in the face of the antiterrorism rhetoric, the Act
included several destructive provisions having nothing to do with
terrorism. One sharply curtailed the right of habeas corpus, the
"Great Writ" by which federal courts have granted relief
to people imprisoned as a result of constitutional violations
in state court criminal proceedings.' Others limited aliens' ability
to claim political asylum and deprived them of due process rights
if they entered the U.S. without going through immigration inspection,
even if they are not suspected of any involvement in terrorist
activity.
TERRORISM IS WHATEVER THE SECRETARY
OF STATE DECIDES IT IS
Perhaps the most troubling feature
of the 1996 Act is its resurrection of guilt by association, criminalizing
humanitarian support to any group blacklisted as "terrorist."
Under the 1996 Act, the Secretary of State may designate a foreign
group as a terrorist organization if she finds that the group
"engages in terrorist activity" that threatens the "security
of United States nationals or the national security of the United
States." The Immigration and Nationality Act defines "terrorist
activity" to include virtually any use of force, and the
Antiterrorism Act defines "national security" as "the
national defense, foreign relations, or economic interests of
the United States." As a result, the Secretary of State can
designate organizations that engage in both lawful and unlawful
activity, based on a determination that the group's activities
threaten our foreign policy or economic interests. Since courts
are reluctant to second-guess the Secretary of State on what threatens
our foreign policy, the law effectively gives the Secretary of
State a blank check to blacklist disfavored foreign groups.
The Clinton Administration admitted
in hearings leading up to enactment of the law that some of the
groups it ultimately designated as "terrorist" were
in fact broad-based organizations engaged in lawful social, political
and humanitarian activities as well as violent activities. In
1994, the Clinton Administration testified against a bill that
would have made membership in Hamas a ground for exclusion, arguing
that because Hamas engages in "widespread social welfare
programs" as well as terrorism, one could not presume that
a Hamas member was a "terrorist', without indulging in guilt
by association. Yet by 1995, the Administration proposed to do
just that for countless groups. The initial designations by the
Secretary in October 1997 fulfilled that promise, including Hamas
on the list."' Also on the list was the Popular Front for
the Liberation of Palestine, which the trial court in the LA 8
case found was involved in a wide range of lawful activities,
including the provision of education, day care, health care and
social security. Notably, the list did not include any group headed
by Osama bin Laden, illustrating the limitations of such a designation
process as an antiterrorism measure.
Three consequences flow from the Secretary
of State's decision to designate a foreign entity as a terrorist
organization: (1) it is a crime for anybody to contribute money
or other material support or resources to a designated group,
even for its social, political or humanitarian activities;"
(2) all members of the group are barred from entering the United
States, and are deportable if they were members prior to entry,
even if they have never been involved in illegal activities; and
(3) banks must freeze funds of any designated organization and
its agents.
The designation authority invites selective
enforcement. The Secretary of State can pick and choose which
groups to designate, based on the politics of the moment. The
Act's terms encompass groups whose activities threaten the security
of U.S. nationals, meaning any U.S. tourist or corporate outpost
anywhere in the world. There are literally hundreds if not thousands
of groups worldwide that engage at least in part in violent activities.
Practically speaking, the government must necessarily enforce
such authority selectively. Introducing a further opportunity
for politically motivated decisions, the Secretary of State can
take an organization off the list whenever she decides that the
national security of the United States warrants it, even if the
organization is still involved in terrorist activity.
The decision of the Secretary of State
to designate a group as terrorist can be based on classified evidence.
An organization can challenge the Secretary's designation in federal
court, but the scope and terms of judicial review are severely
limited: a court can set aside the determination only if it finds
it to be "arbitrary" or "capricious," unconstitutional,
or "short of statutory right." The review is to be "based
solely upon the administrative record," and the statute provides
no opportunity for a designated group to contribute to the administrative
record. And the Secretary of State can defend her decision with
secret evidence, making it impossible to mount an effective challenge.
Most importantly, because courts will not second-guess the Secretary
of State on what threatens our "foreign relations,"
the designation is effectively unreviewable. Yet the Act says
that this one-sided review is the sole avenue for challenging
determinations of what is and is not a terrorist organization.
By the time the government brings criminal proceedings against
someone for improper fundraising activity, it is too late to challenge
the designation: the Act provides that "a defendant in a
criminal action shall not be permitted to raise any question concerning
the validity of the issuance of such designation as a defense
or an objection at any trial or hearing."
CRIMINALIZING SUPPORT FOR HUMANITARIAN
AND POLITICAL ACTIVITIES
Once a group has been designated, it
is a crime to provide any monetary or material support to it.
'~ The law exempts medicine and religious materials, but all other
humanitarian or political aid is prohibited. Congressional proponents
of the measure referred to it as a ban on "terrorist fundraising."
But rather than targeting fundraising for terrorist violence,
the Act bans virtually all material support, even for humanitarian
and political activities, of designated groups. This list-based
approach to fighting terrorism produces some absurd results. For
example, it is not a crime to raise and contribute money for violent
conduct abroad that is not otherwise a crime under U.S. law, if
carried out by a group that is not designated by the Secretary,
but it is a crime to raise money for the peaceful activities of
designated groups. Moreover, if a designated group renounces violence,
it remains a crime to support its peaceful activities until the
Secretary removes it from the list, but it is not a crime under
the Act to give money to any splinter group that remains committed
to terrorism, until that splinter group is designated. Increasingly,
we are seeing terrorist activities for which credit is claimed
by a "previously unknown group," yet it is impossible
under the Act for the Secretary to bar support for a group that
has no name.
This provision was entirely unnecessary.
Prior to enactment of the 1996 Antiterrorism Act, it was already
illegal to support the terrorist acts of any group or person if
those acts were crimes under U.S. law. Aiding and abetting the
commission of a crime is as illegal as the underlying crime itself.
Additionally, in 1994 Congress passed a law specifically prohibiting
material support of certain terrorist crimes at home or abroad
(crimes against U.S. persons or interests wherever committed).
The full scope of the 1996 Act prohibition
is not entirely apparent. What if one knowingly gives money to
an undesignated organization, but the government claims it was
controlled by a designated organization? What if one gives money
to an undesignated organization that has as a constituent member
a designated organization? The significance of these questions
lies not only in how they are answered, but also in the uncertainty
that they create. Persons legitimately concerned about conditions
in other countries, and seeking to support the political and humanitarian
activities of ethnic or nationalist groups, will be more hesitant
to exercise their First Amendment rights to support them if they
fear criminal prosecution.
Furthermore, the uncertainty and ambiguity
inherent in the fundraising prohibition invites the FBI to conduct
wide-ranging investigations of lawful activities. The FBI can
claim that it was merely trying to determine whether contributions
to a non-designated organization were being diverted to a designated
organization, or whether contributors "knew" where their
contribution was ending up. On this thin reed, the FBI can try
to justify wide-ranging investigations into certain communities,
repeating-with legal sanction-the abuses of its past.
Indeed, the Clinton Administration
was quite explicit in 1996 about its intention to investigate
First Amendment activities. It sought and obtained repeal of the
seemingly modest protections of the Edwards amendment, which prohibited
investigations of "material support" to terrorism based
solely on activities protected by the First Amendment. The Clinton
Administration had agreed to the Edwards amendment in the 1994
crime bill. Yet by early 1995, the Administration was claiming
that this provision imposed "an unprecedented and impractical
burden on law enforcement concerning the initiation and continuation
of criminal investigations," and in the 1996 Act the Administration
succeeded in obtaining its repeal, thus codifying the theory underlying
the discredited CISPES and LA 8 investigations.
Simply put, the fundraising ban of
the 1996 Antiterrorism Act ignores what has long been a fundamental
precept of our constitutional law-that "a blanket prohibition
of association with a group having both legal and illegal aims,"
without a showing of specific intent to further the unlawful aims
of the group, is an unconstitutional infringement on "the
cherished freedom of association protected by the First Amendment."
p140
A year and a half after President Clinton signed the 1996 Antiterrorism
Act, the State Department designated 30 groups as foreign terrorist
organizations. The long delay in issuing the list belied the government's
claim in 1995 that enactment of the fundraising ban was urgently
needed to fight terrorism. Without a designation, the ban on domestic
fundraising for terrorist organizations had no effect. The list
was issued in October 1997 only after political pressure was applied
by private groups.
Now that groups have been designated,
anyone who provides funds or other support to the listed groups
can be prosecuted. American financial institutions that have assets
of these groups under their control must freeze them. Known members
of such organizations are not eligible for visas. When the State
Department designated the groups, its spokesperson James P Rubin
noted that "the goal of this law was more deterrence than
confiscation." But in seeking deterrence, the ; government
cast a wide net chilling speech and punishing individuals for
constitutionally protected associational activities.
p151
THE PATRIOT ACT
In legislative time, Congress enacted
the PATRIOT Act virtually overnight. Attorney General John Ashcroft,
its principal proponent, exerted extraordinary pressure, essentially
threatening Congress that the blood of the victims of future terrorist
attacks would be on its hands if it did not swiftly enact the
Administration's proposals. The bill was never the subject of
a Committee debate or mark-up in the Senate. There was a truncated
process in the House, which heard no official testimony from opponents
of the bill but at least held a full Committee mark-up. But the
result of that process was put aside by the Administration and
the House leadership and never brought to a vote in the full House.
Instead, after three weeks of behind-the-scenes discussions between
a few Senators and the Administration, a bill was introduced in
the Senate on October 5 that included essentially all of the Administration's
proposals. That bill passed the Senate on October 11, following
a brief debate that made it clear that even supporters of the
legislation had not read it and did not understand its provisions.
The next day, a slightly different bill was introduced in the
House, and was taken up and passed the same day under a procedure
barring the offering of any amendments. It is virtually certain
that not a single member of the House read the bill for which
he or she voted. Differences between the two bills were reconciled
without the normal convening of a conference committee. The President
signed the bill into law on October 26.
Some measures in the omnibus act make
sense. These include provisions ensuring adequate personnel on
the northern border, some provisions strengthening the laws on
money laundering, some provisions intended to break down institutional
barriers that had limited the sharing of information between law
enforcement agencies and intelligence agencies, and provisions
intended to improve the processing of visas. (Making these things
actually work, however, is largely beyond Congress's control.)
Some of the expanded electronic surveillance provisions would
also have made sense had they included appropriate limitations
and judicial controls.
But in many respects, the PATRIOT Act
reflects an overreaction all too typical in American history.
It casts a cloak of secrecy over the exercise of government power
by removing limitations and judicial controls on investigative
authorities, and short-circuits procedures designed to protect
the innocent and punish the guilty. It violates core constitutional
principles, rendering immigrants deportable for their political
association and excludable for pure speech. It fundamentally alters
the power of the FBI and the role of the CIA within the United
States, without adequate checks to protect against abuses. And
by reserving its harshest measures for immigrants, measures that
in the immediately foreseeable future will be directed predominantly
at Arab and Muslim immigrants, it sacrifices commitments to equality
by trading a minority group's liberty for the majority's purported
security-a trade that will in all likelihood be ineffective. Painting
with a broad brush is simply not a good law enforcement tool;
it wastes resources on innocents and alienates communities, making
it all the more difficult for law enforcement to distinguish the
true threats from the innocent bystanders.
The PATRIOT Act: (1) imposes guilt
by association on immigrants, extending the reach of that philosophy
beyond the 1996 Act; (2) authorizes executive detention on mere
suspicion that an immigrant has at some point engaged in a violent
crime or provided humanitarian aid to a proscribed organization;
(3) authorized the government to deny entry to aliens for pure
speech, resurrecting yet another long-interred relic of the McCarthy
era; (4) expands the government's authority to conduct criminal
searches and wiretaps without first showing probable cause that
the subject is engaged in criminal activity; (5) authorizes secret
searches in cases having nothing to do with terrorism; (6) gives
the Central Intelligence Agency access to the awesome power of
criminal grand juries; and (7) reduces judicial oversight of intrusive
information gathering powers and expands the scope of FBI access
to a wide range of records, essentially sanctioning fishing expeditions.
p177
Church Committee (Senate) 1976
"In times of crisis, the Government will exercise its power
to conduct domestic intelligence activities to the fullest extent.
The distinction between legal dissent and criminal conduct is
easily forgotten. Our job is to recommend means to help ensure
that the distinction will always be observed."
p177
As September 11 dramatically demonstrated, the United States faces
a real terrorist threat from abroad. At the same time, however,
the United States itself has not been a fertile breeding ground
for homegrown terrorism. This may well be because values central
to our system of democratic governance make it difficult to nurture
within this country the ideological, ethnic or religious hatred
that fuels much terrorism. These values include appreciation of
diversity and religious and ethnic tolerance, reflected in our
repeated absorption of large influxes of immigrants. They also
include constitutional limits on government powers, checks and
balances, access to government information, accountability of
public officials, and due process accorded in judicial proceedings
open to public scrutiny, all of which increase public confidence
in government. Perhaps most important is our strong protection
for political freedoms of speech and association, with a nearly
unlimited right to criticize government and government officials,
and a nearly insurmountable presumption against prior censorship,
assuring the disaffected that their concerns can be heard without
violence.
Unfortunately, much of our official
response to the threat of terrorism is incompatible with these
core civil liberties values. The 1996 Antiterrorism Act, for example,
deems people guilty not on the basis of what they have done, but
on the basis of the groups with which they are associated. It
denies one of the most fundamental elements of due process-the
right to confront one's accusers in open court. And measures taken
after September 11 have similarly threatened basic values - imposing
guilt by association, conducting trials in secret, engaging in
ethnic profiling, and intruding on the privacy of innocent persons.
The question is whether we can respond effectively to the new
threat of terrorism without jeopardizing the very freedoms that
have contributed to our security at home.
THE FALSE TRADE-OFF-CURTAILING LIBERTY
WILL NOT ENHANCE SECURITY
In the ongoing debate over responding
to terrorism, many argue that civil liberties must be sacrificed
in order to ensure the safety of our democratic way of life. Something
unique about the threat of terrorism, it is argued, requires us
to alter the constitutional balance we have long struck between
government power and personal freedoms. The premise of this argument-so
unquestioningly accepted that it often goes unstated -is that
antiterrorism measures infringing civil liberties will work.
Efficacy, of course, does not determine
the outcome of the constitutional debate. Even if a police state
were efficient, it would not reflect our fundamental values. But
many of the rights we have discussed in this book actually promote
governmental efficacy in defending the common good. We guarantee
the right to confront one's accusers, for example, not only as
an element of human dignity but also because we know that cross-examination
is an effective engine of truth. Relying on untested evidence
not only risks convicting the innocent, but it also means that
the search for the truly guilty party may be called off prematurely.
We subject executive decisions to judicial review not only because
the judicial system gives a voice to individuals but also because
we know that the adversarial process can produce a fuller factual
record, exposing faulty assumptions, and because deliberative
review by life-tenured judges can protect against the rash decisions
resulting from the pressures felt by elected officials. We reject
guilt by association not only to protect political freedom, but
also because a system that holds individuals responsible for their
own actions is more closely tailored to deterring crime. We protect
freedom of speech not only because it allows room for personal
self-expression, but also because the availability of channels
for peaceful change promotes stability. We have more to fear from
the pressure-cooker of repressed dissatisfaction than from the
cacophony of dissent. For these reasons, many of the counterterrorism
measures that we have criticized are not only unconstitutional,
but are also likely to be counterproductive.
Curtailing civil liberties does not
necessarily promote national security. In COINTELPRO, the FBI
experimented with the massive monitoring of political dissent.
It failed to produce any substantial evidence of violent conduct,
proving that politics is a poor guide and extensive monitoring
an ineffective strategy for counterterrorism investigations. Other
more recent examples here and abroad have shown that racial and
ethnic stereotyping is a poor basis for security policy. The assassin
of Yitzak Rabin escaped detection because the Prime Minister's
bodyguards were on the lookout for Arab assailants. If police
had listened only to those who claimed that the Oklahoma City
bombing bore the trademarks of Muslim fundamentalists, they might
not have captured Timothy McVeigh as he fled from the crime.
Violations of civil liberties "work"
only in a narrow sense: random or door-to-door searches will uncover
contraband in some houses, and torture of arrestees will induce
some to provide truthful evidence of wrongdoing, including evidence
that may allow the prevention of violent attacks. But these "successes"
must be balanced against the wasted resources consumed by fruitless
random searches and generalized monitoring of groups or movements,
the mistakes caused by reliance on faulty coerced confessions,
and, most importantly, the tremendous loss of trust in government
(and the consequent shutting off of voluntary cooperation) generated
by unfocused investigations and the harassment of communities
on the basis of stereotypes. On balance, even measured only in
terms of effectiveness, there is little evidence that curtailing
civil liberties will do more good than harm.
IMPLICATIONS OF A NEW, MORE DANGEROUS
TERRORISM
In every age, dangers can be cited
that make limitations on intelligence operations seem imprudent-threats
of such an urgent and unique nature that it seems necessary to
expand government powers, at least long enough to turn back the
new threat. Today's proponents of expanding government power to
fight terrorism argue that the terrorist threat now is qualitatively
different than in the past. September 11 certainly gave these
arguments added weight.
But the heightened risk of terrorism
simply means that the consequences of failing to adopt a sound
antiterrorism policy are more serious than ever before. It does
not tell us what policy to adopt.
Indeed, aspects of the new threat of
terrorism point in quite different directions. Before adopting
measures that curtail personal freedom, it might be more effective
to address the highly destructive products that pose such serious
risk to life. The U.S. and its allies have not done nearly enough
to gain control of the nuclear materials of the former Soviet
Union, a project that probably would mean far more to national
security than curtailing civil liberties. Lethal biological and
chemical materials are widely produced and are subject to inadequate
controls. A program of stringent federal regulation of anthrax
would have no civil liberties implications, but could meaningfully
restrict access to such products by both the malevolent and the
merely careless.
It is also clear that not nearly enough
was done with investigative and protective authorities that existed
before the 1996 and 2001 Acts and that had little to do with intrusions
on political freedoms. For example, prior to September 11 there
were repeated warnings about poor airport security. Documents
disclosed by the New York Times in January 1999 showed that explosives
and guns avoided detection in government tests of airline security,
due largely to lax practices on the part of screening personnel.
Similarly, it became clear following the embassy bombings in Africa
that Washington officials were largely unresponsive to the intense,
well-founded and forcefully expressed concerns of the American
ambassador to Kenya, who warned repeatedly that the embassy was
insufficiently protected against terrorist attack. Indeed, the
CIA repeatedly told the State Department that there was an active
terrorist group in Kenya connected to Osama bin Laden, since accused
of masterminding the bombings there and in Tanzania.
Despite the wartime rhetoric of stamping
out terrorism everywhere, the terrorist threat will never be eliminated.
We must develop sound responses. But in doing so, we should be
careful not to sacrifice the fundamental principles that characterize
our democratic identity. The better course is to adhere to our
liberal principles, to use the criminal laws to punish those who
plan or carry out violent acts and to invite critics of our government
into the practice of democracy and tolerance.
REFORMING FBI COUNTERTERRORISM ACTIVITIES
The principles guiding FBI counterterrorism
activities were laid down over 50 years ago, before World War
II, and were last revised over 25 years ago, while the Cold War
was still underway. At that time, the main national security threat
was the Soviet Union, which was understood to be conducting a
worldwide campaign against the United States through clandestine
means and covert proxies.
At the beginning of the Cold War, the
criminal law was thought to be of little relevance to this struggle.
The foreign agents conducting or directing hostile actions against
the U.S. were often operating under diplomatic immunity. It was
assumed that criminal prosecution would reveal too much classified
information, compromising continued counterintelligence efforts.
Even with respect to U.S. citizens suspected of spying in the
United States, the presumption was against criminal prosecution.
Clandestine disruptive actions and double agent operations were
justified as the best means of preventing damage to U.S. interests,
on the ground that the criminal law was not available.
Major changes over the last two decades
have upset many of the assumptions on which FBI national security
activities were founded. The Soviet Union has disintegrated. Human
rights protection has emerged as a leading principle of U.S. foreign
policy (at least in theory). International law has undergone revolutionary
change, to the point where the United States now has at its disposal
a range of international sanctions to punish state sponsors of
terrorism.
Most importantly, criminal law has
assumed a primacy in national security policy. It is now routine
to arrest and prosecute suspected spies, through trials in which
all of the government's evidence is presented publicly and subject
to cross-examination. The Classified Information Procedures Act
makes such public prosecutions less risky to ongoing operations,
while preserving defendants' rights to confront the evidence against
them. U.S. criminal law has been given wide extraterritorial effect,
reaching almost any attack anywhere in the world against an American
citizen, U.S. government property or property owned by U.S. corporations.
International cooperation in the field of criminal law makes it
more likely than ever that terrorism can be dealt with through
arrest and prosecution in U.S. courts.
A revised view of intelligence is also
demanded by another change: The United States, always a diverse
society, has become even more so. Consider just religious diversity.
There are 3000 religious denominations and sects in the U.S. today.
Not only are there more Muslims than Episcopalians in the United
States, but there is a diversity within this diversity that defies
common assumptions. For example, contrary to popular perception,
most Muslims in the U.S. are not of Arab origin and most persons
of Arab descent in the U.S. are not Muslims.
In the face of such diversity, principles
of pluralism, tolerance of dissent, and individual rather than
group culpability should guide the development of national security,
intelligence, and counter-terrorism policy. The alternative is
a stereotyping that can ossify or mislead the investigative focus:
While the FBI was conducting an intensive investigation of the
PLO-affiliated PFLP in the 1980s and 1990s, the U.S. government
was promoting the signing of an Israeli-PLO peace accord, and
the focus of terrorism concern in the Middle East shifted to anti-PLO
Muslim fundamentalists. As soon as the FBI launched a massive
campaign against Muslim fundamentalists in the wake of the World
Trade Center bombing, the Murrah building in Oklahoma City was
blown up by white, native born ex(Is. And while the FBI and the
INS pursued innocent Arab and Muslim political activists, terrorists
careful to avoid any showing of religious or political orientation
planned and carried out the September 11 attacks.
INTELLIGENCE IN A DEMOCRATIC SOCIETY
Improving "intelligence"
is obviously a critical factor in preventing future terrorist
attacks. Some advocate the clandestine collection, without the
particular suspicion of wrongdoing, of large quantities of information,
the immediate relevance of which may not be clear, in order to
piece together a mosaic that might help policymakers anticipate
actions of potential adversaries. The tools of this type of intelligence
include black bag jobs and wiretaps under the Foreign Intelligence
Surveillance Act, information sharing relationships with foreign
intelligence services, and the sifting of vast databases of information
on innocuous transactions. Much of this information is unreliable;
rarely is it ever subjected to the testing of the adversarial
process; and all too often it intrudes on protected political
activity.
We favor another vision of intelligence,
one rooted in the concepts of the criminal law. "Intelligence"
in this context means the collection and analysis of information
about a criminal enterprise that goes beyond what is necessary
to solve a particular crime. Intelligence of this type is intended
to aid law enforcement agencies in drawing a fuller picture of
the enterprise. It allows the government to identify the silent
partners, those who provide money for violent attacks or issue
the commands. Intelligence allows investigators to link seemingly
disparate crimes into a pattern. At its best, intelligence allows
the government to anticipate and prevent a group's next dangerous
crime, thereby saving lives.
The FBI routinely conducts "intelligence"
operations of this second type against organized crime families
and drug cartels. It does so subject to the ordinary rules of
criminal procedure. The goal of such investigations is to arrest
the leaders and to put them on trial for specific crimes. And
one of the most important constraints on such criminal intelligence
is the public trial-everything done in the name of criminal intelligence
must ultimately bear scrutiny in a court of law.
The concept of criminal intelligence
can be fully compatible with the Constitution. The First Amendment
does not require the FBI to be deaf when someone advocates violence.
The Constitution does not require the government to wait until
a bomb goes off or even to wait until a bomb factory is brought
to its attention-it does, however, require the FBI to focus its
investigations on the interdiction of violence, and other criminal
conduct. Too often, the FBI has not limited itself to uncovering
evidence of a crime, but instead has conducted lengthy investigations
that consist of routine monitoring and disrupting of lawful political
activities.
We live in a world of political, ethnic
and religious violence. There will undoubtedly be more acts of
terrorism both here and overseas against U.S. targets. It is incumbent
on those who criticize current counterterrorism policies to answer
how they would go about addressing the threat of terrorism; We
believe that an effective counterterrorism policy can be implemented
in this country based on traditional criminal procedures directed
at crimes of violence, including intelligence gathering aimed
at preventing terrorist acts before they occur.
The FBI is at its best when it does
criminal investigations. It is at its worst when it acts in a
counterintelligence, monitoring mode, secretly pursuing an ideologically-defined
target without the constraints and focus of the criminal code
and without the expectation that its actions will be subjected
to scrutiny in the adversarial context of a public criminal trial.
Counterterrorism investigations should
investigate terrorist acts as crimes, regardless of their political
motivation. Murder, kidnapping, or bank robbery by terrorists,
even murder on a mass scale, is most effectively investigated
using the same techniques that are applied to murder, kidnapping
and bank robbery by non-terrorists. By and large, this was the
FBl's focus under the Levi domestic security guidelines. The focus
on criminal activity was also for some years a central feature
of U.S. policy against terrorism abroad. In the 1980s, a major
component of the policy was the extension of extraterritorial
jurisdiction over crimes of violence committed by terrorists against
Americans abroad, so that terrorists could be extradited to the
U.S. to be tried here.
Indeed, the United States has continued
to pursue this approach, in tandem with the broader monitoring
approach reflected in the 1996 and 2001 antiterrorism laws. Federal
prosecutors in New York successfully prosecuted al Qaeda members
who carried out the African embassy bombings. The Justice Department
is pursuing criminal charges in connection with September 11.
If a criminal trial is possible against the hierarchy of entire
organized crime families, it is also possible against those members
of terrorist organizations who are engaged in carrying out or
directly supporting violent activities, at least in situations
short of war. In the case of a group having both legitimate and
illegitimate activities, the focus should be on identifying and
prosecuting all those responsible for the illegal activities,
not penalizing innocent support of lawful conduct.
To reform FBI counterterrorism policies
and avoid repetitions of ClSPES-type cases, it is necessary to
redraw the lines between criminal investigations and foreign counterintelligence
investigations. Overbroad intelligence monitoring is a diversion
from the harder work of identifying real terrorists. The CISPES
case at the time it occurred was seen inside and outside the FBI
as a waste of resources. Counterintelligence monitoring displaced
the search for evidence of crimes. Even though the FBI had an
allegation that CISPES was planning terrorist attacks in Dallas,
the investigation never actually had as its goal a resolution
of that allegation. In the few instances in which the FBI received
information concerning other possible violent activity by specific
CISPES chapters, agents failed to pursue those allegations. Instead,
agents devoted their efforts to identifying all CISPES chapters
throughout the U.S. and monitoring clearly legal activities. If
members of CISPES had actually been planning terrorist activity,
the investigation conducted by the FBI was not likely to have
uncovered it. In the case of those convicted of the first World
Trade Center bombing, some of whom were the subject of a counterintelligence
investigation prior to the bombing, a similar adherence to the
monitoring approach may have contributed to the FBl's failure
to pursue the case to an earlier resolution, which could have
prevented the 1993 attack.
All antiterrorism investigations in
the United States, whether of foreign or domestic groups, should
be conducted pursuant to criminal rules, with the goal of arresting
people planning, supporting or carrying out violent activities
and convicting them in a court of law. Law enforcement must stop
framing terrorism investigations in political, religious or ethnic
terms. The FBI still classifies its investigations as "environmental
terrorism" ("eco-terrorism") or "lslamic fundamentalist
terrorism" or "Puerto Rican terrorism." This only
reinforces the notion that the Bureau's role is to monitor politics
rather than to investigate crime. Instead, once a politically-motivated
group advocating violence is identified, the goal of the investigation
should be to identify those engaged in the criminal enterprise,
not to identify those who share the ideology.
Such a counterterrorism program would,
in may respects, be the exact opposite of what was reflected in
the Antiterrorism Act of 1996 and the PATRIOT Act of 2001. Where
those Acts empowered the FBI to investigate a new, broadly-defined
offense of "support for terrorism," we would propose
express legislative limits on the FBl's discretion to investigate
First Amendment activities. Where those Acts expanded the concept
of support for terrorism to include support for the political
and humanitarian activities of groups that also engage in violence,
we advocate limiting the crime of support for terrorism, like
any crime of aiding and abetting, to support for activities that
are themselves crimes. Where those Acts endorsed the unfocused
approach of guilt by association, we would require the FBI to
focus its investigations on collecting evidence of individual
culpability. Where those Acts allowed the use of secret evidence,
we maintain that the government should subject its evidence to
the test of cross-examination. And where those Acts adopted a
political approach to terrorism, we insist that the FBI must get
out of the business of monitoring political activity and associations,
foreign and domestic, and instead dedicate itself to the ~ urgent
task of identifying those planning violent activities. Only such
a J transformation can successfully meet the threat of terrorism
without sacrificing our political freedoms.
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