Memo in Opposition of H.R. 2184, the Terrorism Bill

6-16-99: Memo in opposition of H.R. 2184, the Terrorism Bill, Scheduled for Subcommittee Mark-up in the Week of June 21, 1999

TO: Interested Persons

FROM: Gregory T. Nojeim, Legislative Counsel, American Civil Liberties Union

RE: Terrorism Bill, H.R. 2184, Scheduled for Subcommittee Mark-up in the Week of June 21, 1999

Background

The House Judiciary Committee’s Subcommittee on Immigration and Claims is scheduled to mark up during the week of June 21 an anti-terrorism bill, H.R. 2184, introduced to Rep. Robert Andrews (D-N.J.) on June 14. The ACLU urges members of the Subcommittee to oppose the bill because it would result in deportation of aliens based merely on their speech or their associations with others, including aliens who have not and would not engage in violent terrorist activity. In so doing, the bill would resurrect the “guilt by association” principles of the McCarran-Walter Act, even though McCarran-Walter was ridiculed as unfair and was repealed by Congress in 1990 after a federal district court declared it unconstitutional. The bill ignores one of the most fundamental aspects of constitutional law in this area: people should be deported based on their violent activities, not based on constitutionally-protected activity, such as membership in a group and mere speech.

Rejecting these most fundamental principles, the Andrews bill would:

• allow for deportation of aliens based merely on their membership in a “terrorist” organization, regardless of whether the organization is formally designated a terrorist organization, and no matter how innocent an individual’s membership;
• render the process in current law for designating organizations “foreign terrorist organizations” a virtual nullity for immigration purposes because it would allow for the deportation of members of organizations that are not designated as “foreign terrorist organizations;”
• effectively place in the hands of the Immigration and Naturalization Service the power to decide which domestic organizations are “terrorist organizations” the non-citizen members of which can be deported, because the bill fails to define “terrorist organization,” or even limit “terrorist organizations” to foreign organizations;
• make protected political speech that merely “encourages” another individual or a terrorist organization to engage in terrorist activity conduct for which a person may be deported or denied admission, even if the speech is uttered in circumstances that do not indicate the intention or ability to cause harm;
• render inadmissible every alien who knows that another person conducted an act of terrorist activity if the alien fails to report the act to law enforcement authorities, and even if the alien had nothing to do with the act. Read literally, it renders inadmissible virtually every alien around the world because they failed to report to law enforcement agencies that Timothy McVeigh bombed a federal building in Oklahoma City, and would render inadmissible every alien who watches the news and thereby learns of the next act of terrorism, but fails to report it to the police.

H.R. 2184 is the third in a series of bills Rep. Andrews has introduced that would unconstitutionally infringe on the rights of non-citizens to associate with others. The first of these bills, H.R. 334, simply states that aliens who associate with “terrorists” are deportable. 1 The second bill, H.R. 1745, says the same thing, but attempts to equate association with a person with aiding and abetting terrorist activity. 2 At May 18, 1999 hearings on H.R. 1745, this created concern both from the Clinton Administration 3 and from members 4 of the Subcommittee on Immigration and Claims that the bill could be interpreted as requiring deportation based on mere association. H.R. 2184 is consistent with its predecessors in that it unconstitutionally punishes association in the form of membership in a group, instead of violent or illegal conduct.

Non-Citizens Are Protected by the First Amendment

We believe H.R. 2184 is an unconstitutional infringement of rights protected by the First Amendment. The Supreme Court has stated that non-citizens who reside in the United States have the same First Amendment rights as do citizens:

[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments…. None of these provisions acknowledges any distinction between citizens and resident aliens. They extend their inalienable privileges to all ‘persons’ and guard against any encroachment on those rights by federal or state authority.

Kwong Hai Chew v. Colding, 344 U.S. 590, 596, n.5 (1953) (quoting Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring). Nearly 50 years ago, the Court rejected the government’s argument that aliens under deportation have lesser First Amendment rights than do citizens. Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952) (applying to a non-citizen the then-prevailing First Amendment standard for citizens as reflected in Dennis v. U.S., 341 U.S. 494 (1951)).

Current Law Appropriately Focuses on Terrorist Activity for Purposes of Deportation

Under current law, an alien who engages in terrorist activity is deportable. Sections 237(a)(4)(B) and 212(a)(3)(B)(iii) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. 1227(a)(4)(B) and 1182(a)(3)(B)(iii), respectively. A person “engages in terrorist activity” if the person commits an act of terrorist activity — or if the person should know that the person’s actions afford material support to another person, organization or government in conducting terrorist activity. “Terrorist activity” is already broadly defined to include using a gun or explosive with intent to endanger the safety of another or to cause substantial damage to property, attacking or detaining an internationally protected person, hijacking, or kidnapping or assassinating a person. Under current law, an alien is also deportable if the alien helps another engage in terrorist activity by: planning or preparing terrorist activity; gathering information on a potential target; providing any type of material support including a safe house, transportation, communications, funds, false ID’s, weapons, explosives or training to any individual the actor has reason to believe plans terrorist activity; or soliciting funds for, or an individual to engage in, terrorist activity.

In contrast to the deportation grounds, current law renders aliens inadmissible on broader terrorism grounds, including grounds which the courts have rejected as grounds for deportation. Under current law, an alien is inadmissible if the alien engaged in terrorist activity, incited it under circumstances indicating an intention to cause serious bodily harm, or is a representative or a member of a foreign terrorist organization designated as such by the Attorney General under the procedures in Section 219 of the INA. INA Section 212(a)(3)(B)(i), 8 U.S.C. Section 1182(a)(3)(B)(i).

H.R. 2184 Would Resurrect the Discredited McCarran-Walter Act

The Andrews bill, H.R. 2184, would impermissibly expand the grounds of inadmissibility and turn most of them into grounds for deportation. In so doing, it would render aliens deportable merely on account of their membership in a group that the Immigration and Naturalization Service (INS) regards as a terrorist organization, rather than for engaging in terrorist activity. Membership is, of course, associational activity protected by the First Amendment to the Constitution. H.R. 2184 would impose a form of guilt by association on members of organizations who have not, would not or could not engage in or provide any support for terrorist activity.

The bill would resurrect for purposes of deportation the McCarthy-era McCarran-Walter Act. This product of the Red Scare allowed, among other things, for the deportation of aliens who were members of the Communist Party or who advocated communism, other proscribed doctrines, or violence.

Because it focused on associations and advocacy, rather than on violent activity, the McCarran-Walter Act ran counter to the ideals of the First Amendment, and led to many embarrassing visa denials. Under that law, the U.S. denied visas to, among others, Pierre Trudeau, once the Prime Minister of Canada, Canadian naturalist Farley Mowat, and several authors who had won the Nobel Prize. In 1989, a federal district court struck the deportation provisions of the McCarran-Walter Act as unconstitutional. American-Arab Anti-Discrimination Committee v. Meese, 714 F. Supp. 1060 (C.D. Cal. 1989), aff’d in part and rev’d in part on other grounds, 970 F.2d 501 (9th Cir. 1991). In 1990, Congress repealed the McCarran-Walter Act and embraced the notion that aliens should be excluded or deported from the United States based on their illegal or violent activities, not based on speech and associations protected by the First Amendment. In the 1996 Antiterrorism and Effective Death Penalty Act. Pub. L. 104-132, 110 Stat. 214 (AEDPA), Congress reasoned that non-citizens outside of the United States have no constitutional rights and could be excluded from the U.S. based their membership in a foreign terrorist organization designated by the Secretary of State under specific criteria.

H.R. 2184 Would Attack Non-Citizens’ Rights to Associate

The Andrews bill, H.R. 2184, goes much further. It renders deportable aliens who have been admitted to the United States who are or become members or representatives of any organization the INS regards as a terrorist organization, regardless of whether the Secretary of State designated it as such. Under current law, the Secretary of State may designate an organization a “foreign terrorist organization.” When she does this, its members become inadmissible to the United States. An organization can be so designated only if it is a foreign organization, it engages in terrorist activity, and the terrorist activity threatens the security of United States or its nationals. INA Section 219(a), 8 U.S.C. 1189(a).

Whether the Secretary should be given this power was one of the most controversial aspects of AEDPA. As a result, a number of safeguards were built in:

• only foreign organizations could be designated;
• Congress had to be notified seven days before any group was designated;
• the designation had to be published in the Federal Register;
• a designated organization could seek judicial review;
• the designation would be reviewed by the Secretary every two years;
• Congress could at any time enact a law disapproving of such designation.

The Andrews bill would eviscerate all of these protections for immigration purposes 5 because it would allow the INS to decide which organizations are terrorist organizations, the members of which are deportable and inadmissible. The bill provides no criteria for making that decision, and no controls. It is completely open-ended. Nothing would prevent the INS from deciding that any domestic political party, club, or charitable association is a “terrorist organization” and from deporting all of its non-citizen members, regardless of whether they have, would or could engage in terrorist activity. While the INS might be disinclined to deport the non-citizen members of, say, Operation Rescue, Greenpeace, or People for the Ethical Treatment of Animals (even though some have argued that they are “terrorist organizations”), nothing would prevent it from deciding to deport as terrorists all non-citizen members of the Irish Republican Army (IRA), or of its political wing, Sinn Fein, the Zapatistas in Mexico, and all who have ever provided any of them with material support. H.R. 2184 would affect many controversial groups that non-citizens in the U.S., and our government itself, have supported such as the Kosovo Liberation Army, mujaheddin groups in Afghanistan and others. As a result, the bill would have a broad chilling effect on associational activity by non-citizens.

H.R. 2184 Would Attack Free Speech

The Andrews bill, H.R. 2184, attacks not only protected associations, it defines “aiding and abetting” terrorist activity in a manner that attacks speech as well. It renders speech that merely “encourages” terrorist activity conduct for which a person may be denied admission, even if the encouraging words are uttered in circumstances that are neither intended nor likely to cause imminent harm. For example, a Kosovo refugee in a refugee camp in Albania would be inadmissible as a terrorist if, upon hearing evidence of atrocities in Kosovo, she said, “I encourage someone to kill Slobodan Milosevic for what he has done.” It would not matter whether the statement was made in a fit of anger, in circumstances indicating no intent or ability to carry out the act or to help another carry out the act, or in circumstances suggesting no immediate threat of violence. This speech would be protected by the First Amendment if uttered in the U.S. Under Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), even the most provocative speech advocating violence is protected unless the advocacy is: (i) directed to inciting or producing lawless action; (ii) the lawless action to be produced is imminent; and (iii) the advocacy is likely to incite or produce such lawless action. The statement cited fails the Brandenburg test, but would render the person making it inadmissible if the Andrews bill becomes law. 6

H.R. 2184 Turns Innocent Activity Into “Aiding or Abetting” Terrorist Activity

In fact, the entire provision on aiding or abetting should be struck from the Andrews bill because it separates the acts of “aiding or abetting” from the furtherance of any specific criminal or violent activity. Under current law, a person can be convicted of aiding and abetting criminal behavior if the government proves that:

• the person associated himself with the criminal venture;
• the person wished to bring it about;
• the person sought by his actions to make it succeed; and
• somebody else committed the offense.

See, e.g., U.S. v. Broadwell, 870 F.2d 594 (11th Cir.), cert. denied sub nom. Blanton v. U.S., 493 U.S. 840 (1989). Every element of the crime of aiding and abetting is tied to the prohibited activity.

In contrast, the Andrews bill, H.R. 2184, completely separates “aiding or abetting” from the violent or illegal terrorist activity. Rather than making inadmissible those who aid or abet terrorist activity, this bill punishes those who aid or abet persons or groups. Under the Andrews bill, a person is inadmissible for “aiding or abetting” even when there is no connection to violent or illegal activity, and even when the person who engaged in the illegal or violent activity did so long in the past. For example, a person who gives an award and a speaking stipend to Nelson Mandela of the African National Congress would be inadmissible for having given, “aid or comfort to another individual … who [the] alien … reasonably should know has conducted … terrorist activity.” This would be so because our government once regarded the ANC as a terrorist organization. It would not matter that the ANC has not and would not be designated as such under Section 219 of the INA, or that the U.S. government would itself be guilty of engaging in the same conduct.

Not only does it render inadmissible those who have no connection to violent or illegal activity, the aiding or abetting section of H.R. 2184 renders inadmissible virtually every alien in the world for aiding or abetting terrorist activity. Under proposed Section 212(a)(3)(B)(VI)(dd), a non-citizen has aided or abetted terrorist activity if:

“with knowledge that another individual or a terrorist organization has conducted a terrorist activity [the alien fails] to report such activity to any Federal or State law enforcement authority in the United States or to any international law enforcement authority in a country that is not a State sponsor of terrorism… .”

Thus, every alien who failed to report that Timothy McVeigh bombed a federal building in Oklahoma City, or the bombing of the U.S. embassies in Africa, or who watches the news and thereby learns of and fails to report the next bombing or terrorist activity wherever it may be, is inadmissible.

Conclusion

We believe that this legislation is unnecessary because virtually every activity that could be regarded as truly “aiding or abetting” terrorist activity is already conduct for which a person may be deported from the United States or denied admission. If conduct that would constitute true aiding and abetting violent terrorist activity is not now a grounds for deportation, a constitutionally acceptable bill might focus on those who engage in that conduct, not on those who do not. The ACLU strongly encourages members to oppose this legislation, H.R. 2184.

Footnotes

1 H.R. 334 provides in relevant part, “Any alien who at any time after admission associates with any individual the alien knows or has reason to believe is designated as a terrorist in the Department of State publication ‘Patterns of Global Terrorism’ is deportable.” This publication characterizes some organizations as “terrorist organizations.” While it mentions some individuals, it does not “designate” them as “terrorists.”

2 H.R. 1745 would create a new grounds of deportation for associating with “terrorists” and provides in relevant part:

Association With Known Terrorists.–Any alien who at any time after admission associates with an individual who the alien knows, or has reasonable ground to believe, is designated as a terrorist in the Department of State publication entitled ‘Patterns of Global Terrorism’ is deportable. For purposes of the preceding sentence, an alien shall be considered to have associated with such an individual if the alien engaged in a pattern of conduct that, with respect to both the frequency and the nature of the conduct, gives rise to a reasonable suspicion that the alien knowingly aided and abetted such an individual to engage in terrorist activity (as defined in section 212(a)(3)(B)(iii)).

3“The bill … could be viewed as creating a deportation ground based on pure association. This would raise serious First Amendment concerns in light of the Supreme Court’s long-standing First Amendment decisions governing deportation based on aliens’ associational activities with foreign subversive groups.” Hearings on H.R. 1745, H.R. 238 and H.R. 945 Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 106th Cong., 1st Sess. (1999) (written statement of Bo Cooper, Acting General Counsel of the Immigration and Naturalization Service, at pp. 4-5).

4 See, e.g. exchange between immigration attorney Michael Wildes who supported H.R. 1745, and Rep. Howard Berman (D-CA) in an unofficial transcript of the hearing provided by Congressional Quarterly:

Berman: But then, why do we talk about association? Why don’t we talk about the conduct of aiding and abetting an individual to engage in terrorist activity?
Wildes: Because, I think we’re trying to go after the friends of the terrorists here, not just the terrorists themselves. The association…
Berman: Do you — are you telling us that you think it would, you could justify a deportation based — that X was a friend of a terrorist?
Wildes: No. No, that’s not what I’m saying.

5 The assets of an organization designated a foreign terrorist organization under Section 219 are frozen, and it is a crime to provide “material support” to any such designated organization. The protections would remain in effect for purposes of the freezing of assets and the bar to material support.

6 The Andrews bill would add “aiding or abetting” as a grounds for inadmissibility, but would not make aiding or abetting a separate grounds for deportation. However, under INA Section 237(a)(1)(A), an alien who was inadmissible at the time of entry is deportable. Thus, if the Andrews bill became law, the aiding or abetting provisions might well render some aliens deportable as well as inadmissible.