Terrorizing the Constitution

April 19 is fast approaching, and Congress knows it. If we don't have an anti-terrorism law by then, the anniversary of the Oklahoma City bombing, President Clinton will be sure to let the nation know. He's already attacked the Republicans repeatedly for their "failure" to pass such a bill, and in an election year, how can he possibly resist?Showing signs that it may bow to this pressure, the Republican-controlled House is currently taking up the terrorism bill. Twice before, efforts to pass it have come up short, largely because of objections from a broad-based coalition of strange bedfellows -- led by the American Civil Liberties Union and the National Rifle Association -- who agree that the measure would unnecessarily expand government power and infringe on personal liberties. (The Senate, which acted precipitately in the wake of the Oklahoma City bombing, passed an anti-terrorism bill by a vote of 91 to 8 in June, 1995.)As a matter of short-term politics, the proposed law gives Clinton a convenient way to look tough on crime, and lets him charge the Republicans with being soft on "terrorism." But the longer-term issue -- one that will be with us for decades to come -- is whether terrorism today requires us to alter the constitutional balance we have so long maintained between government power and personal freedoms. One need only look at Israel or Great Britain to see that when the threat of terrorism strikes home, personal liberties are often sacrificed in the name of security. The anti-terrorism bill invites us to head down that road.Proponents of expanding government power to fight terrorism, such as the Defense Department's Peter Probst, argue that the threat today is qualitatively different from that of the past -- for two reasons. First, terrorism has been increasingly taken up by religious groups and cults, which may be less concerned about creating mass destruction than the traditional political terrorist. The political terrorist, the argument goes, operates within the constraints set by the goal of obtaining political support for his cause. The religious or cult terrorist, by contrast, is not looking for political support and may harbor Armageddon-like fantasies, and thus knows no bounds.Second, technological advances have made chemical, biological and even nuclear weapons much more widely available, and have thereby democratized the ability to inflict mass destruction. Thomas Hobbes' fears about the threat we face from our neighbor are heightened if our neighbor has not simply a club but a vial of pulmonary anthrax, an incredibly lethal biological agent. Therefore, the Leviathan's powers must be augmented to meet this threat. But how rational are these fears? And even if the concerns are justified, do the controversial elements of the anti-terrorism bill, which sharply restrict constitutional freedoms, respond to them?There are a number of reasons to be skeptical about the claim that terrorism has qualitatively changed. Terrorism is designed to provoke terror, so we should be wary of too easily falling prey to our fears. And terrorists are easily demonized, for their willingness to engage in abominable and wholly illegitimate acts means they have rejected the norms of civilized society. Moreover, it's only "terrorism" when the other side does it, and we always believe the worst about the other side. The charge that "these people know no bounds" is nothing new, and has repeatedly been made in this country about the "other side," whether they be Native Americans, anarchists, the Japanese during World War II or Communists.But is it really true that terrorists today know no bounds? Hamas, Hezbollah and Islamic Jihad, for example, have been engaging in terrorism for many years now, yet they have strategically targeted and timed their attacks to further their political agenda. The recent series of horrific suicide bombings in Israel, for example, broke a six-month hiatus in terror attacks there and appear aimed at disrupting the peace process. According to the U.S. government's own allegations, Sheik Omar Abdel Rahman, the Egyptian cleric serving a life sentence for his role in encouraging the World Trade Center bombers, had at times discouraged terrorism because he felt it would "be bad for Muslims." Terrorists don't abide by our bounds, but we shouldn't be quick to conclude that they know no limits whatsoever.As to advances in technology, there are no doubt more ways to destroy the world today than fifty years ago, thanks largely to the arms race. But as the Oklahoma City bombers demonstrated with ordinary, widely available farming chemicals, it doesn't take advanced technology to kill scores of people in a single act. It's not clear, therefore, that technological advances have categorically increased a threat that has long been with us.Hostage to the LawIt is easy to be swayed by dramatic incidents like the Oklahoma City bombing, but the statistics don't support the dire predictions. According to the State Department's most recent annual report on "global terrorism," international terrorism "declined worldwide" in 1994, reaching the lowest annual total in twenty-three years. In the six years prior to 1995, there were only nine international terrorist incidents in all of North America. (By contrast, during the same period in Latin America there were 821 acts of international terrorism.)In assessing the terrorist threat, the real question is, Compared to what? When Congress voted last year to lift the 55-mile-per-hour speed limit, it knowingly increased the number of Americans who will die in automobile accidents by several thousand per year, more than terrorists have ever killed in a year worldwide. More than 20,000 people are murdered in the United States every year, the vast majority by gunfire; yet Congress has never been able to enact anything more than symbolic gun-control measures. Thus, we knowingly tolerate many conditions that pose far greater risk of harm to ourselves than terrorism.Let's assume for a moment that we do face a qualitatively different terrorist threat today. Does that mean that we must -- or should -- increase government power at the expense of personal freedoms? Some anti-terrorism measures are no doubt fully justified in the light of new technologies. Lethal biological, chemical and nuclear weapons should be banned. The materials necessary to produce such weapons should be strictly controlled. "Tagging" ordinary chemicals that have legitimate uses but also might be used to produce explosives, so that they are traceable, makes good sense.But while the anti-terrorism bill includes some measures directed at the technology of destruction, its most controversial provisions are of a categorically different character. They would sharply restrict constitutional liberties in the name of the cause. These measures seem not only misguided but counterproductive. Consider, for example, the bill's habeas corpus provisions. Habeas corpus is the only way that most criminal defendants ever get a federal hearing on their constitutional claims. It's an incredibly important stopgap, as illustrated by the fact that some 40 percent of state-imposed death penalties are reversed in federal habeas corpus proceedings for constitutional violations that the state courts overlooked.Yet under the anti-terrorism bill, federal courts would have to defer to a state court's conclusions on constitutional questions unless the state court's decision was "arbitrary" or "unreasonable." This watering down of constitutional protections applies to all state crimes, from fornication to shoplifting, and has no connection whatsoever to terrorist offenses, the vast majority of which are tried in federal court. It restricts constitutional rights with no net gain in the fight against terrorism.The bill also reintroduces to criminal law the concept of guilt by association -- a notion we tried out -- with disastrous results during the McCarthy era. The anti-Communist laws presumed that anyone working with or assisting the Communists was guilty of the party's illegal ends, even if the individual cooperated only for purposes that were legal, such as labor organizing. The injustices and excesses of that experiment ultimately led the Supreme Court to rule that where the government seeks to hold someone accountable for supporting a group, it must prove that the individual specifically intended to further the group's unlawful ends. Under the anti-terrorism bill, the Secretary of State could designate any foreign group as "terrorist," and it would then become a crime, punishable by up to ten years in prison, to support that group's lawful activities. The Secretary's designation would for all practical purposes be unreviewable, because the legal standard for what qualifies a group as terrorist relies on the Secretary's judgment that the group's activities threaten our "national security," a judgment no court is likely to second-guess. Would this provision help stem the tide of new terrorism? Perhaps, for the Secretary of State could effectively stifle aid to a given group engaged in terrorism. But it would do so at the cost of giving the federal government unchecked power to blacklist any organization it does not support. Moreover, the bill is specifically directed at humanitarian and lawful support, since support of terrorist acts is already a crime under current law. By criminalizing those who associate with a group's lawful ends, it deters precisely the people who might have some moderating influence on the group in question. And by making peaceful political association a federal crime, the bill would authorize widespread F.B.I. political spying on non-violent domestic organizations, an authority that history shows is bound to be abused.A third provision of the bill would allow the government to deport immigrants -- both permanent residents and those here temporarily -- on the strength of secret evidence that neither the immigrant nor his or her attorney would ever see. The government would be free to submit evidence behind closed doors to a judge hand-picked by Chief Justice William Rehnquist, and to make secret arguments and take secret appeals outside the immigrant's presence. This provision sacrifices the most basic tenet of the American adversarial system -- that the government must confront individuals with evidence it seeks to use against them. Every time the government has sought to employ such a procedure against aliens living in the United States, the federal courts have held that it violates due process -- most recently in a unanimous Ninth Circuit Court of Appeals decision last November, which the United States declined to appeal.The Clinton Administration argues that such a measure is needed because it sometimes has classified information that it would like to use without having to reveal the source or specific content. But the government faces this situation every day in criminal courts across the country, where it must choose between revealing the source and not using the evidence. The rule applies no matter how heinous the crime, and no matter how sensitive the information. There simply is no other way to administer a fair system of justice, because it is impossible to defend oneself against secret evidence.There is no question that these measures violate well- established principles of freedom of association and due process. But their proponents contend that the new world order requires a rethinking of these constitutional underpinnings. "The Constitution is not a suicide pact," as Justice Arthur Goldberg once said, and as the government has not stopped quoting since. But are these constitutional sacrifices necessary? Will they save us?Let's return to the two claims made about the new terrorist threat. Terrorists today know no bounds. If that's the case, it's not clear that any of these measures are likely to save us. Our best hope is that our fellow human beings will in fact be bound by the basic principles of civilized society. And one of the most important things we can do to insure that is to honor certain fundamental limits on the power of government. Empowering the state to blacklist disfavored groups, use secret evidence and violate constitutional rights without adequate judicial review plays into the hands of zealots; it also not only feeds their paranoia but makes it seem rational.At the same time, such tactics seem likely to drive the truly dangerous underground, where they will be more difficult to track. Some say that America's open society makes it especially vulnerable to terrorist attack. But one of the principal benefits of an open society with substantial political freedoms is that it provides peaceful ways to express opposition and to work for political change. Repressive governments tend to breed rather than contain violence. The United States has been relatively free of terrorism, I believe, largely because of, not in spite of, our political freedoms.Finally, even if it is true that technological advances have increased the threat from terrorists, they have also increased the threat from government. New technologies give the state unprecedented ability to track its citizens' every move. As Brian Jenkins, deputy chairman of Kroll Associates, a security consulting firm, has noted, "The technology for national population control is available (counterfeit-resistant identification cards, card readers with mandatory verification at every point of commercial transactions, computer programs with profiles of every citizen) but in most cases, would be regarded as Orwellian." The threat to our freedom from new technologies, in other words, is double-edged. History suggests that we ought to be at least as concerned about government abuse as about terrorists. As Justice Louis Brandeis said, "The greatest danger to liberty lurks in insidious encroachment by men of zeal, well-meaning but without understanding." The best we can do is stick to the principles that have guided us thus far, and hope that by respecting those constitutional bounds, we will set an example that others can follow.


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