Testimony of Legislative Counsel Gregory T. Nojeim on the Civil Liberties Implications of Counterterrorism Measures Before the National Commission on Terrorism

GREGORY T. NOJEIM

LEGISLATIVE COUNSEL

AMERICAN CIVIL LIBERTIES UNION

WASHINGTON NATIONAL OFFICE

CIVIL LIBERTIES IMPLICATIONS OF

COUNTERTERRORISM MEASURES

BEFORE THE

NATIONAL COMMISSION ON TERRORISM

MARCH 17, 2000

Chairman Bremer, Vice Chairman Sonnenberg, members of the Commission:

I am pleased to offer this statement today before the National Commission on Terrorism on behalf of the American Civil Liberties Union about the civil liberties implications of counterterrorism measures. The ACLU is a nation-wide, non-profit, non-partisan organization consisting of over 275,000 members dedicated to protecting the principles of freedom set forth in the Bill of Rights.

The Commission is charged with reviewing U.S. counterterrorism laws, policies and practices and assessing their efficacy in preventing and punishing international terrorism directed towards the United States. It must make recommendations to the President and Congress to prevent and punish international terrorism directed against the U.S. The Commission was never charged with measuring those laws and policies against the Constitution and the liberties it secures. Nonetheless, you have convened a panel today to do just that. This action in itself demonstrates a level of care and wisdom all too often lacking in the discussion of counterterrorism measures.

Today I will discuss a number of counterterrorism measures that Congress and the Executive Branch have recently adopted. I will describe their effect on civil liberties and on the protective goals they were put in place to accomplish, and I will suggest alternative approaches where appropriate. I will conclude by challenging the Commission to do more than what other commissions, committees and working groups and task forces have done in this area: many of them have merely paid lip service to civil liberties. I will ask you to make recommendations that not only preserve civil liberties, but advance them.

To highlight the problems, I've organized this presentation not around the particular counterterrorism measures, but around the freedoms and civil liberties values they have compromised. One of the goals of the terrorists is to instill so much fear that we change our society and compromise our values of freedom and liberty. In our effort to combat terrorism we need not sacrifice our freedom; if we do so, then the terrorists will win.

First Amendment

The First Amendment protects our rights to associate with others, to free speech and a free press, to worship freely, and to freely advocate our political beliefs. Far too often counterterrorism measures compromise the most fundamental First Amendment freedoms.

1. Exclusion from the U.S. Based on Mere Membership in a Group

People should not be penalized on account of their associations because to do so would violate the First Amendment. For all but a few years of the last half century, our immigration laws have rejected this principle. Instead, these laws have required the Government to deny admission to the United States, or deport from the United States, non-citizens who are members of a disfavored group. During the Cold War, the group was the Communist Party and the law requiring exclusion or deportation was the McCarran-Walter Act. Today, the groups are those designated as "terrorist organizations" and the law requiring exclusion or deportation is the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

Under these laws, it does not matter that the person never engaged in any violent activity, would not do so, and could not do so. It does not matter that the person opposes any violent activity in which members of the organization engage, or that the person seeks to come to the United States to advance the role of non-violence in the organization. And it does not matter that a person in the United States wants to invite that non-citizen to give voice to a message of tolerance and peace. That person is excludable from the U.S. merely on account of his association with a foreign terrorist organization. This flies in the face of the First Amendment principle that the government should hold people accountable for their own actions, not for the actions of those with whom they associate.

The McCarran-Walter Act at one time resulted in the exclusion from the United States such dangerous people as Canadian naturalist Farley Mowat and Pierre Elliott Trudeau, the former Prime Minister of Canada. That these laws often miss the mark when they are applied should not be surprising. The organizations they target do not issue membership cards and do not provide membership lists to the State Department or the INS. Instead, membership is often inferred from advocacy and association. The very freedoms we purport to protect at home and foster abroad are the basis of adverse actions against foreigners. What message does this send about our commitment to these freedoms?

From 1988-1996, these laws were not in place, and people were by and large excluded from the United States based on their activities, not based on their associations. A person could be excluded if the person had engaged in terrorist activity or if there was a reasonable ground to believe that the person was likely to so. Approximately 70 million people were admitted to the United States over this period. Though members of foreign terrorist organizations were admissible, there is not even one instance in which such an admitted person, who was not also excludable on account of his activities, went on to commit a terrorist attack. An admissions policy based on evidence activities instead of evidence of associations or advocacy should be sufficient to ensure safety.

2. Providing Material Support for Lawful Activity

The 1996 antiterrorism law also made it a crime to provide material support for the lawful activities -- including charitable activities -- of foreign organizations designated as "terrorist." Though it is clear under our laws that the First Amendment protects the rights of Americans to support the lawful activities of whatever domestic organization they choose to support, it is no longer lawful for them to choose to support lawful activities of foreign organizations on the terrorist list.

To our knowledge, no person has ever been convicted under this law for providing material support. Rather, it seems to have served as a predicate for more FBI investigation of people who are not engaged in any violent activity, including those who would oppose it. Congress should not be in the business of enacting legislation which, in effect, primarily facilitates pretextual investigations.

A little-known aspect of the bar on material support for the lawful activities of foreign terrorist organizations is the power of the Government to freeze assets without a prior hearing. That this power is seldom used belies concerns voiced over the past decade about "terrorist assets" in the United States. However, in a chilling reminder of the usefulness of this provision as a tool of political repression, one of its first uses was to freeze the assets of a small periodical in Virginia because the FBI believed that the publication was affiliated with an organization on the terrorist list. When the allegation became public and was challenged in court, the asset freeze was quickly lifted.

Fifth Amendment

The Due Process clause of the Fifth Amendment bars the government from depriving a person of liberty or property without due process of law. In the immigration context, this protection has been interpreted to mean that people with some ties to the United States, particularly those with a lengthy presence, are entitled make their case against deportation before an impartial decision maker at a fair, adversarial hearing.

1. Use of Secret Evidence. We are in the midst of a civil liberties crisis: people are being detained, for years, without a realistic opportunity to rebut the allegations that are the basis for their detention. Others not in detention are similarly denied access to the information that is the basis of a determination by the INS to deny them political asylum, withholding of deportation, another immigration benefit critical to their ability to remain here, or admission itself.

No person should be deprived of liberty on the basis of evidence kept secret from the person. This simple statement is a fundamental requisite of any fair legal system. Secret proceedings conducted out of sight of the accused and her attorney are a feature of totalitarian governments, not of our own. The Supreme Court has said time and again that deportation is a severe deprivation of liberty - one that can separate a person from home, family, career, and "all that makes life worth living."

The 1996 Antiterrorism and Effective Death Penalty Act established a new court charged only with hearing cases in which the government seeks to deport aliens accused of engaging in terrorist activity based on secret evidence submitted in the form of classified information. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) expanded the secret evidence court so that secret evidence could be more easily used to deport even lawful permanent residents as terrorists. It also included provisions the Government relies upon to use secret evidence to deny bond to any detained non-citizen (regardless of whether the person is accused of engaging in "terrorist activity") and to deny various discretionary immigration benefits such as asylum to any non-citizen, including those not accused of being terrorists.

Though the secret evidence court has not yet heard a case, the INS has moved in dozens of other proceedings to use secret evidence against non-citizens to deny them bond and relief from deportation, such as asylum. The INS and the DOJ have reported that it has used secret evidence in approximately 50 cases from 1992-1998 and that it is now using secret evidence in 12 cases. That secret evidence is seldom used is scant comfort to a person against whom it is used.

Virtually every recent secret evidence case that has come to public attention involves a Muslim or an Arab. The ACLU represents two such non-citizens. One of them, Nasser Ahmed, is a 37-year old Egyptian who was initially denied bond, asylum and withholding based on secret evidence. The immigration judge who heard the evidence said that he had "no doubt" that Mr. Ahmed would be tortured if returned to Egypt. Mr. Ahmed was held in solitary confinement for over three years, but was recently released from custody on bond. The immigration judge who ordered his release criticized the INS for using secret evidence -- often in the form of double or even triple hearsay -- when public material showing the same thing could have been used instead, and provided to Mr. Ahmed. In re Nasser Ahmed, No. A90 674 238 (6/24/99).

Secret evidence is also being used to detain in Florida without bond Mazen Al-Najjar, a stateless Palestinian also represented by the ACLU. One day at breakfast with his wife as he helped his daughters get ready for school, he answered a knock on the door. This 18-year resident of the United States was immediately detained for alleged violations of the immigration laws. When he asked for release on bond -- which is commonly granted similarly-situated non-citizens who are likely to appear for their immigration hearings because of their strong family and community ties -- his request was denied, based on secret evidence. Last month, Mr. Al-Najjar marked the 1000th day of his detention based on secret evidence.

The INS is also using secret evidence in cases involving six Iraqis airlifted by the U.S. from Northern Iraq because they were part of a failed CIA program to destabilize the regime in Iraq headed by Saddam Hussein. The INS is denying them admission and political asylum based on secret evidence. They risked their lives to do what the CIA encouraged and paid them to do. When the plan went awry and they sought protection here, the INS denied it without giving them or their attorneys access to the evidence upon which the decision was based. Four of the six have agreed to be deported in exchange for release from custody with certain limitations on their liberty while they search for a foreign country that will accept them. Their attorneys have included Commission member and former Director of Central Intelligence R. James Woolsey.

Secret evidence undermines our adversarial system. One cannot defend against the unknown accusation whispered to a judge by a secret accuser. In commenting on secret evidence in another context, Supreme Court Justice Frankfurter once said, "Secrecy is not congenial to truth seeking. ... No better instrument has been devised for arriving at the truth than to give a person in jeopardy of serious loss notice of the case against him and the 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."

Secret evidence in the form of classified information often consists of mere rumor and innuendo. Information is classified without regard as to whether it might later become the basis for denying a person liberty. It is often unverified and unverifiable. It has not been, and cannot be, tested for reliability under rigorous cross-examination. Sometimes, it can be something as "secret" as a newspaper clipping the substance of which could be refuted if only it was known.

The INS has abused its power to use classified information. It uses secret evidence against people who pose no threat to national security. It uses secret evidence when it has available evidence that could be presented in open court that could prove the same thing that the secret evidence purportedly proves. It uses secret evidence to deny mandatory immigration benefits even though it has no statutory authority to do so. It uses secret evidence when there is no need for it to remain secret, as is shown by the large quantities of information has been de-classified in connection with some proceedings when public an judicial pressure has been applied. It uses secret evidence without providing the alien a useful summary of the evidence. In a case involving one ACLU client, the summary initially consisted of one sentence indicating that the person was a member of a known terrorist organization, without even naming the group.

It is impossible to fight charges without knowing the nature of those charges, and who is making them. In U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) secret evidence was used to deny a WWII "war bride" the opportunity to come to the U.S. and join her husband. When eventually she was granted a hearing, the secret evidence was found to be worthless because the "confidential source" that offered it turned out to be a jilted former lover of her husband.

Every court that has addressed the constitutional question in the last dozen years has found unconstitutional the use of secret evidence in immigration proceedings against a person admitted to the U.S., or seeking admission as a returning lawful permanent resident. Legislation (H.R. 2121) has been introduced to require the Government to make in deportation cases the same choice prosecutors must make in criminal cases: either reveal the evidence or keep it fully secret and outside of the proceedings where the person's liberty is at stake. Though required to make these choices, prosecutors have successfully put away truly dangerous terrorists, such as those who bombed the World Trade Center and the federal building in Oklahoma City. The fight against terrorism need not involve compromise of our most cherished constitutional rights.

2. Aviation Security Profiling

Passenger screening is one of the most difficult tasks facing the FAA and air carriers today. The traditional x-ray screening of carry on luggage, and magnetometer screening of the passenger, was designed to detect guns, not bombs. Because the FAA and the air carriers have been unable (or unwilling on account of expense) to put in place measures to screen all passengers and their luggage in a minimally intrusive way, they have instituted a passenger profiling scheme. It employs a computer to profile passengers by evaluating approximately 40 data points to determine which passenger might be carrying a bomb. The computer selects approximately 5% of the passengers for heightened security measures.

Profiling is not an advance in aviation security. It is a retreat. Passenger profiling will not prevent bombings of airplanes. It is imposed to make passengers feel that "something" has been done to prevent such crimes, even though what has been done will not work, is potentially invasive of privacy, and likely to be discriminatory.

From a security perspective, profiles -- whether computerized or manual -- are notoriously under-inclusive. Those who do not "fit the profile" are given only cursory attention, or no attention at all. Yigal Amir, the man who assassinated Israeli Prime Minister Rabin, did not fit the "profile" of a "terrorist" and was therefore allowed unwarranted access to the Prime Minister. No "terrorist" profile would have picked up the seminary student returning to his studies from a visit to his mother who was detained by law enforcement officers in Florida in late 1996 when he tried to board an airplane with an assortment of weapons that included hand grenades. The first recorded bombing of a commercial plane occurred in 1949, when a woman hired assassins to kill her husband, who was on the aircraft. The first bombing of a U.S. commercial carrier occurred in 1955, when a passenger's son arranged to have a bomb explode in a passenger's luggage so that the son could collect on an insurance policy. The FAA's profiling scheme picks up none of these threats.

Profiling does not fill security gaps. It creates them. As these examples show, there are too many possible threats to an airline for a profiling system - including the new computerized profiling system - to account for.

Thankfully, airplanes are seldom bombed. As a consequence, there are simply not enough events upon which to even develop a profile of a person who would explode a bomb on a U.S. airplane leaving an airport in our country. Only twice in the past 14 years have U.S. carriers been bombed, once on Pan Am 103 and once on a TWA flight near Athens in 1986. In neither case was the airplane leaving an airport in the U.S.; profiling as it currently exists could not have stopped the bombings. Indeed, in proposing its profiling rule, the FAA could not identify even one bombing of an airplane that would have been prevented had the profiling scheme it proposed been in place at the time. A universe of zero is scant evidence upon which to select the characteristics of a person who might bomb an airplane leaving a U.S. airport.

From a civil liberties perspective, the FAA's computerized profiling system raises three concerns: first, the profile may single out passengers for heightened security measures based on their race, religion or national origin. Even profiles that do not explicitly include race as an element can often have the racially discriminatory effect of disproportionately selecting people identifiable by race. A profile criterion such as past travel to a terrorist list country would have such a disparate impact. Most of the criteria for the computerized passenger profiling system are secret. However, over 90% of the discrimination complaints received by the ACLU regarding airport security measures were submitted by people who trace their ancestry to the Middle East. In most cases, it is difficult to determine whether the profile used was the computerized or the manual profile. The FAA is commissioning a study to determine whether its profile has an unwarranted disparate impact.

Second, efforts to "improve" the profile by adding ever more data about passengers may result in an invasion of passenger privacy. The computerized profiling system relies on portions of the wealth of data airlines collect about passengers for reasons other than profiling. Information airlines collect about their passengers includes name, address, the destinations to which a passenger flies with a particular airline, how the person paid for their tickets and who may have purchased the tickets for the passenger, the people with whom the passenger has traveled, whether the passenger booked onward travel such as a car or hotel, and other information. This personal data needs to be protected, but it is not. Indeed, Congress just authorized the FBI to obtain this data on a mandatory basis without a criminal predicate for intelligence purposes. Some advocate including information from law enforcement and intelligence databases - which contain incomplete and often inaccurate information - in the mix. Indeed, a DOT proposal to require that passengers provide their date of birth or social security number when they board domestic flights would facilitate the querying of law enforcement and other databases. We expect that when the profiling system fails, it will not be abandoned as it should be. Rather, advocates of profiling will surely argue that the system needs to be "improved" by adding ever more data about passengers, even if is accuracy or reliability as a predictor of terrorism is subject to doubt, and regardless of how private the passenger would like it to be.

Third, when the airports go to higher levels of security alert, those who are selected as potential terrorists may be made to undergo extremely invasive investigative techniques, as has happened in the past. Those security measures may include: asking passengers personal questions about their travel and those with whom they associate; having their luggage sniffed by trained dogs; removing the contents of carry-on or checked luggage and examining each item in front of other passengers; and escorting the passenger through the airport "for security reasons" in full view of other passengers. We are also concerned that the FAA will resort to use of new body scanning technology, already being used by the Customs Service, to peer under passengers' clothing and project detailed image of their bodies, naked, in a search for explosives or weapons.

Profiling does more than subject those who fit the profile to harmless delay. On February 1, 1991 during the Gulf War, an American of Middle Eastern origin boarded a plane in Miami bound for New York. Just before the plane took off, agents of the airline escorted Mr. Ghonoudian from the plane in the full view of other passengers, detained and questioned him for three hours (often in a rude and hostile tone) demanded to know the name of his mother, where he was born, where he had stayed on the earlier portion of his trip, his employer, and how long he had lived in the United States. They forced him to miss his plane, ordered him to remove his jacket and shoes, and conducted a hand search of his entire body, including his crotch and buttocks. One airline agent admitted that Mr. Ghonoudian was forced to leave the plane because he "fit the profile" of a "terrorist." He had done nothing wrong.

On April 19, 1995, the day of the bombing in Oklahoma City, Abraham Ahmad boarded a plane in Oklahoma City bound for Chicago, en route to visit his family in Jordan. He was detained by the government in Chicago, then later in London and in Virginia. Over three days he was questioned repeatedly for prolonged periods of time and with hostility, and was made to answer questions about his religious practices, his friends and his family. At various times, he was handcuffed, paraded through the airport for all to see and fingerprinted. He was strip searched. His identity was made available to the media and his wife fled the family home when the media descended upon it and people began driving by shouting curses and throwing trash. He, too, was innocent of wrongdoing, and the victim of a stereotype.

A good alternative to profiling would be a full luggage match. No person's luggage would be allowed to remain on the airplane unless that person boarded. A full luggage match is now conducted on every flight in Europe and a full luggage match is now conducted on every flight leaving the United States. Thus far, the air carriers have convinced the FAA that it would be too expensive to extend this system to domestic flights. In the current system, a luggage match is applied only to the luggage of people who fit the profile of a terrorist. No other security measure is employed with respect to well over 95% of the luggage of selectees. A luggage match applied to every passenger would better protect passengers from terrorism and would so without a significant impact on their civil liberties.

Military Involvement in Civilian Law Enforcement

Much has been made of late about the perceived need to further involve the military in civilian law enforcement, especially with respect to crimes involving weapons of mass destruction. We believe that it would be a mistake for the Commission to recommend, or for Congress to enact, further erosion of the Posse Comitatus Act, which has since 1878 limited the role of the military in civilian law enforcement. The Act bars the military from "executing the laws" unless it is permitted to do so by Congress or the Constitution. This prohibition is linked to our tradition of civilian control over the military and to recognition of the dangers posed by setting the military against our own citizens. It is also supported by many members of the military who fear an erosion of popular support for the military if it is turned against Americans.

The Congress has repeatedly created exceptions to the Posse Comitatus Act. The broadest and most commonly utilized exceptions relate to the war on drugs. A few years ago, Marines patrolling the border under the authority granted by the exception shot and killed 18-year old Esequiel Hernandez while he was tending his family's goats near the border. This turned many people in the border community against the patrols.

Other exceptions allow for military participation in criminal investigations concerning assassinations, kidnapping and assault on members of Congress, the Cabinet, the Supreme Court, and on the President and Vice President, and the killing of foreign officials. Other exceptions allow members of the military to operate equipment for specific purposes in connection with violations of certain statutes. The President is specifically authorized to call in the military to suppress an insurrection against a State government or a rebellion against the U.S., or to enforce federal authority.

In 1996, Congress authorized military involvement in cases involving weapons of mass destruction, such as agents used for chemical or biological attacks. The exception to the Posse Comitatus Act carved out for such involvement was even broader than an existing exception pertaining to crimes involving nuclear weapons. Nonetheless, the 1996 version of this new exception for cases involving chemical and biological weapons was limited to emergencies and barred military involvement in arrests or direct involvement in investigations. Regulations were required to further delineate the prohibition on arrests and involvement in investigations. Four years later, no such regulations have been issued. Instead, last year, Congress in essence broadened and re-enacted the exception, without any requirement that regulations be issued. Now, the military can be involved in crimes involving chemical or biological agents regardless of whether there is an emergency, and the prohibition on involvement in arrests is qualified: now there can be no "direct" military involvement in an arrest in such a case.

We believe that the existing exceptions to the Posse Comitatus Act are broad enough. Indeed, until the role of the Delta Force at Waco is fully aired as a result of the pending independent investigation, we believe that instead of recommending an expansion of the existing exceptions to the Posse Comitatus Act,