February 6, 1996

Terrifying Terror Legislation?

by David Kopel

Soon the House of Representatives will vote on an "anti-terrorism" bill. If the current bill becomes law, the American people will suffer a profound loss of liberty, for no real gain in their security.

It is astounding to see the 104th Congress move to expand the power and intrusiveness of the federal government. These are the same Republicans sent to Congress to reduce the federal government's erosion of individual rights. Politicians who think they will win votes by passing a bill with the word "terrorism" in the title will be in for a rude surprise when they learn what's really behind the curtain.

First, the bill authorizes federal law enforcement agents to gather personal "information" - such as reports from credit bureaus, employment records and travel information - without first obtaining a court order, and without even a suspicion that the individual is involved in criminal activity. This provision will turn Uncle Sam into Big Brother.

Second, the bill gives the president the power to label a group a "terrorist organization" and make it a federal felony to support the legal activities of that group. If a president had used this new power to label Nelson Mandela's African National Congress "terrorist" during the time it was engaged in a violent revolutionary war against the apartheid government, it would have been a felony to pay $5 for a ticket to hear Mr. Mandela give a speech. It also would have been illegal to send humanitarian aid to the ANC.

Third, illegal wiretaps would be admissible in court, as long as the wiretapping federal official was acting in "good faith." This good faith proviso is a dangerous smoke screen: How do you prove a bureaucrat was acting in bad faith?

Fourth, the bill has become a vehicle for gun control legislation that could never pass this Congress on its own merits. Currently it is illegal to sell someone a firearm if you know it will be used in crime. This bill would apply a five-year mandatory minimum sentence to cases in which the seller allegedly "should" have known that the gun would be used in a crime. This provision would allow anti-gun prosecutors to destroy almost any gun store they chose to target.

Fifth, the bill virtually destroys the right of habeas corpus — the right of persons to ask a federal court to rescue them when they are being held in state prisons in violation of the federal Constitution.

Although the anti-habeas provision is being sold as a measure for speeding up death row executions, it applies to all cases, not just death penalty ones. Recent Supreme Court decisions have already sharply curtailed habeas petitions, making this provision unnecessary.

Sixth, for the first time in American history, secret evidence — evidence the accused would not even be allowed to see — would be admissible in court. Such evidence could be used in some deportation cases, even those involving legal resident aliens who, if convicted on the basis of "secret evidence," would face deportation or federal prison. Once the principle of secret evidence becomes law, it will be hard to resist its application — particularly in cases involving taxes, drugs or unregistered guns — in which informers are commonly used.

Finally, if the House bill passes, it will be sent to a conference committee to be merged with the Senate bill. The Senate bill contains a number of seriously disturbing and dangerous provisions: expanding the use of the military in domestic law enforcement; funding for "Digital Telephony" to make the entire U.S. phone system wiretap-friendly and to allow government officials to tap a phone line without leaving their offices; defining ordinary property and violent crime as "terrorism"; and giving the Bureau of Alcohol, Tobacco and Firearms an extra hundred million dollars, despite the lack of major reforms to prevent another Ruby Ridge or Waco.

The House Republicans wisely resisted President Clinton's demagogic tactics during the health care debate, recognizing that when the American people learned the facts they would not surrender their rights for a false promise of security. They should take a similar stand on this terrorism bill - and then take their case to the American people.

David Kopel is an associate policy analyst with the Cato Institute.

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More articles and books by Dave Kopel on constitutional law and criminal justice, including terrorism policy.

Oklahoma City Law Review article by Dave Kopel and Joseph Olson on terror legislation.

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