How the Anti-Terrorism Bill Allows for Detention of People Engaging in Innocent Associational Activity
The final version of the anti-terrorism legislation, the Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (H.R. 3162, the "USA PATRIOT Act") permits detention and deportation of non-citizens who provide assistance for lawful activities of a group the government claims is a terrorist organization, even if the group has never been designated as a terrorist organization.
The Secretary of State can designate groups either under existing section 219 of the Immigration and Nationality Act (INA) or under a new provision created by section 411 of the USA PATRIOT Act. While existing INA section 219 permits designation of foreign groups with various procedural safeguards, Section 411 of the USA PATRIOT Act adds a new provision to INA section 212(a)(3)(B) that permits designation foreign and domestic groups, without those procedural safeguards. Under this new power, the Secretary of State could designate any group that has ever engaged in violent activity a "terrorist organization" - whether it be Operation Rescue, Greenpeace, or People for the Ethical Treatment of Animals. The designation would render the group's non-citizen members inadmissible to the United States, and would make payment of membership dues a deportable offense. Under the bill, people can be deported regardless of whether they knew of the designation and regardless of whether their assistance had anything to do with the group's alleged terrorist activity.
Because of these problems, the defense allowed in the USA PATRIOT Act, requiring the immigrant to show he did not know, and reasonably should not have known, that his lawful assistance to a group not designated as a terrorist organization would nevertheless further "terrorist activity," puts an unreasonable burden on the immigrant and would certainly lead to unjust detention and deportation.
The Justice Department argues that it can be trusted to exercise its prosecutorial discretion wisely. It says it would detain and deport those who materially support groups that common sense dictates are terrorist groups. Similar claims were made about the RICO statute, adopted to fight organized crime, but which has been used in recent years against abortion opponents, the Clinton Administration and the Republican political organizations. That history shows that discretion is not a reliable solution when a statute, read literally, permits innocent associations to be made unlawful in circumstances that Congress did not intend to reach.
Finally, section 411 of the USA PATRIOT Act punishes speech protected by the First Amendment, even of lawful permanent residents, resurrecting the discredited McCarren-Walter Act, adopted at the height of McCarthyism, which barred non-citizens from this country on the basis of their advocacy of Communism. The USA PATRIOT Act permits immigrants to be found "inadmissible" for advocacy that the Secretary of State determines undermines our anti-terrorism efforts. Section 411, amending INA section 212(a)(3)(B). The advocacy does not have to meet the test adopted by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (advocacy can be banned only if it represents "incitement to imminent lawless action"). Under this section, a lawful permanent resident who makes a controversial speech could potentially be barred from returning to his family after taking a trip abroad.
Last Updated - October 23, 2001