US Anti-Terrorism Legislation: The Erosion of Civil Rights

Kamal Nawash was general legal counsel for the American-Arab Anti-discrimination Committee from 1998 to 2000. He is now a partner in the law firm of Hanania & Nawash in Washington, D.C.

Terrorism is a phenomenon that has plagued many of the world’s nations. It presents serious challenges to all who fall victim to it. These challenges become very complicated when the nations affected place a high value on civil and human rights. The challenges lie in finding ways of preventing and punishing ideologically motivated violence without infringing political freedoms and civil liberties.

 

The United States is a prime target of violence from groups and individuals at home and abroad. Like all nations, the United States has the right to combat violence against its civilians. Violence against civilians cannot be excused, and must be prevented when possible and prosecuted when it occurs.

 

However, the record of our nation’s response to the threat of terrorism, especially in the last ten years, is one of repeated attacks on the civil liberties of certain vulnerable communities, without any gains in the fight against terrorism.

 

In the past decade, several cases arose in which the authorities used the threat of “international terrorism” to violate the basic civil rights of many in the Arab and Muslim communities. These cases have reinforced ethnic and religious stereotypes against immigrants from the Middle East and have produced numerous acts of anti-Arab and anti-Muslim discrimination.

 

In the name of fighting terrorism, federal law-enforcement and investigative officials have targeted Arab and Arab-American communities in New York, Tampa, Detroit, Los Angeles and dozens of other cities. The Federal Bureau of Investigation’s focus on Arab and Muslim immigrant communities intensified after the enactment of the Anti-terrorism and Effective Death Penalty Act of April 1996. This law explicitly repealed a 1994 law called the “Edwards Amendment” which had prohibited FBI investigations of legal advocacy, fund-raising and other First Amendment activities protected by the US Constitution.

 

Since the removal of the prohibition on FBI investigations of First Amendment activities, civil rights organisations such as the American-Arab Anti-discrimination Committee (ADC) have documented numerous incidents in which the FBI has approached people with immigration problems and threatened to deport them (or their relatives) unless they provide “information” on active Arab-American community leaders. Consequently, these “fishing expeditions” have instilled fear in, and stifled legal political activity among, many immigrant groups.

The ‘Foreign Threat’

In combating potential terrorist violence, the US government regularly speaks of, and focuses on, “international terrorism”. This is so despite the fact that there has been no foreign involvement in most of the recent highly publicised violent or terrorist incidents in the United States—for example, the Oklahoma City and Atlanta Olympics bombings, the crash of TWA Flight 800 and attacks on dozens of abortion clinics and African-American churches. According to the FBI, from 1984 to 1994 there were only two terrorist incidents in the United States carried out by international groups.

 

Nevertheless, right after the bombing of the Oklahoma City federal building in April 1995, many politicians and commentators were quick to suggest that “foreign terrorists” were responsible. As a result, more than two hundred attacks on Arab Americans, Muslims and immigrants in the United States were recorded in the three days after the bombing, ranging from “spitting on women wearing shawls ... to a fake bomb thrown at a Muslim day care center”.¹ However, it swiftly became apparent that the Oklahoma City bombing was the work of native-born Americans and not international terrorists. Nevertheless, Congress proceeded to enact a counter-terrorism bill that primarily focused on international terrorism.

 

While the counter-terrorism bill was before Congress, numerous civil liberties groups united to put constitutional questions on the agenda. These groups pointed out that the bill would pose an unprecedented threat to some of our most cherished liberties, especially our First and Fifth Amendment rights to freedom of speech, association, religion, and to due process in court. Nevertheless, on 24 April 1996, President Clinton signed the “Anti-terrorism and Effective Death Penalty Act of 1996” that was aimed at international terrorism.

 

Supporters of the bill also pointed to the World Trade Center bombing in 1993. However, the World Trade Center defendants were convicted under federal criminal statutes that already existed. In fact, the Justice Department did not need the additional criminal provisions and investigative powers mandated by the Anti-terrorism Act to prosecute suspects for their roles in the New York bombing.

Effect of the Act

Since its passage, the Anti-terrorism Act has had a much harsher impact than expected, especially on the Arab and Muslim immigrant communities. Among the act’s consequences is the substantial increase in detentions and deportations based on evidence that is kept secret from the accused and his attorney. While the Immigration and Naturalisation Service (INS) relies on a regulation from the 1950s to keep evidence secret, the use of this procedure rose substantially after the passage of the Anti-terrorism Act. At present, the Justice Department is using secret evidence in the cases of approximately twelve immigrants to establish that they threaten “US national security” because of their alleged political associations. The government is using secret evidence to hold some of these non-citizens in INS detention without bond. All of these immigrants are Arabs and Muslims from the Middle East. Two of them, Dr Mazen Al-Najjar and Dr Anwar Haddam, have been in jail for more than three years without criminal charges.

 

Another consequence of the Anti-terrorism Act has been the criminalising of humanitarian aid to schools, medical facilities and even orphanages located overseas that the authorities suspect of some association with a State Department–designated “foreign terrorist group”. The Justice Department has employed a variety of legal tools to shut down the flow of humanitarian assistance. Among the tools are grand jury investigations; civil asset forfeiture laws (previously used in drug cases); the freezing of assets; and threats to bring criminal prosecutions under the fund-raising provisions of the 1996 law.

 

To date, the full scope of the prohibition on fund-raising is not entirely known. What is known is that the ban on even humanitarian fund-raising has produced no tangible results. Dale L. Watson, section chief for International Terrorism Operations at the FBI, testified to this effect before a Senate subcommittee. Moreover, the vagueness of the fund-raising provision has created substantial uncertainty about its application. For example, what if one knowingly gives money to a non-designated organisation, but one of its constituent members is a designated organisation? The significance of this question lies not only in how it is answered, but also in the uncertainty it creates. Persons legitimately concerned about conditions in other countries, and seeking to support the humanitarian activities of ethnic or nationalist groups, will be more hesitant to exercise their First Amendment rights to do so if they fear criminal prosecution. Moreover, the act fails to take into consideration that in many parts of the world the only organisations which provide humanitarian aid are those categorised as “supporters of terrorism”.

 

Significantly, in both the secret evidence and fund-raising contexts, the Justice Department has been reluctant to bring criminal prosecutions against any of the individuals and groups it has targeted for investigation and accused of support for, or membership of, foreign terrorist groups. Instead, the Justice Department has relied on prosecutorial procedures that are categorised as civil proceedings but which nevertheless result in serious deprivation of property and liberty in the same way as criminal proceedings.

 

The advantage for the government in using civil proceedings such as immigration and civil asset forfeiture proceedings is that it substantially lowers the government’s burden of proof. Rather than having to prove its case “beyond a reasonable doubt”, in civil proceedings the government only has to prove its case by the “preponderance of the evidence”.

 

The practical result of lowering the burden of proof is that ultimately the burden shifts from the government (to prove the accused’s guilt) to the accused (to prove his innocence). In civil proceedings the accused is not entitled to an attorney and does not have the right to confront and cross-examine his accusers. Thus, if the INS chooses to rely on secret evidence to detain the accused, he will not be able to hear the evidence and tell his side of the story.

 

The Sixth Amendment, which guarantees the rights to an attorney and to cross-examine evidence, only applies in criminal cases. As mentioned above, immigration matters, including detentions, are considered civil rather than criminal. Thus, by relying on secret evidence in immigration proceedings, the authorities are able to “detain” (imprison) suspects as if they were criminals without giving them the constitutional rights of criminal suspects.

Secret Evidence

On 26 September 1997, Anthony Lewis began his regular column on the op-ed page of the New York Times as follows:

 

The prisoner has been in solitary confinement for 17 months. There is no charge that he has ever committed a crime. He is held as a danger to the security of the state—on the basis of evidence that he is not allowed to see and cannot answer. It sounds like a report from a tyrant state, but it is happening in our own country.

 

Since 1996, the INS has increased its detention and deportation of non-citizens using evidence kept secret from the detainees and their attorneys. The use of secret evidence has resulted in the detention of non-citizens based on unreliable allegations or erroneous information. Many allegations could easily have been clarified or contested had the detainees or their attorneys been informed of the specific evidence for detention.

 

Proceedings against non-citizens are held before an immigration judge. In a case involving secret evidence, INS prosecutors present classified documents and the testimony of FBI agents in the judge’s chambers, without the immigrant’s attorney being present. Attempts to challenge this practice in immigration courts are useless since immigration judges do not have the power to rule on the constitutionality of the use of secret evidence or any other immigration procedure.

 

The use of secret evidence was successfully challenged by the ADC in 1997 (ADC v. Reno, Ninth Circuit, 1997). The court in that case held that secret evidence violates the suspect’s right to due process. In fact, every court that has addressed the constitutional question in the last dozen years has found the use of secret evidence in immigration proceedings to be troubling. The following are details from some of the cases in which courts ruled on the use of secret evidence:

 

• Federal Appeals Court for the District of Columbia, Rafeedie v. INS, 1989. The court rejected an attempt by the INS to use secret evidence to exclude from the United States a lawful permanent resident upon his return from a trip abroad. In reaching this decision, the court said: “Rafeedie—like Joseph K. in Kafka’s The Trial—can prevail ... only if he can rebut the undisclosed evidence against him, i.e., prove that he is not a terrorist regardless of what might be implied by the government’s confidential information. It is difficult to imagine how even someone innocent of all wrongdoing could meet such a burden.”

 

• Federal Appeals Court for the Ninth Circuit, ADC v. Reno, 1995. The court rejected an attempt by the INS to deny legal residency to two Palestinians it accused of associating with a terrorist organisation. In characterising the INS use of secret evidence in that case, the court said: “One would be hard pressed to design a procedure more likely to result in erroneous deprivations … Because of the danger of injustice when decisions lack the procedural safeguards that form the core of constitutional due process, the ... balancing [test adopted by the Supreme Court to determine whether INS conduct violates a non-citizen’s due process rights] suggests that use of undisclosed information in adjudications should be presumptively unconstitutional.”

 

• Federal District Court in New Jersey, Kiareldeen v. Reno, 1999. The court ordered the release of Hany Kiareldeen after he had been detained for nineteen months based on secret evidence that is believed to have been offered by his estranged wife, with whom he was having a custody battle. In granting Kiareldeen’s petition for habeas corpus, the court cited the Supreme Court’s decision in Bridges v. Wixon and said: “The court cannot justify the government’s attempt to ‘allow [persons] to be convicted on unsworn testimony of witnesses—a practice which runs counter to the notions of fairness on which our legal system is founded’.

 

“Here, the government’s reliance on secret evidence violates the due process protections that the Constitution directs must be extended to all persons within the United States, citizens and resident aliens alike.

 

“Despite repeated requests from the Immigration Judge, the government made no recorded efforts to produce witnesses, either in camera or in public, to support its allegations of terrorism. The petitioner was thus denied the opportunity to meaningfully cross-examine even one person during his extended detour through the INS’ administrative procedures. The INS’ actions unconstitutionally damaged Kiareldeen’s due process right to confront his accusers. The quality of the evidence offered by the government as the basis for the petitioner’s continued detention does not attain that level of reliability sufficient to satisfy the constitutional standard of fundamental fairness.”

 

• Federal Court for the Eastern District of Virginia, Haddam v. Reno, 1999. “The use of secret evidence against a party, evidence that is given to, and relied on, by the [immigration judge and the Board of Immigration Appeals] but kept entirely concealed from the party and the party’s counsel, is an obnoxious practice, so unfair that in any ordinary litigation context, its unconstitutionality is manifest.”

 

• Donn Livingston, immigration judge, Ahmed v. INS, 1999. Nasser Ahmed, a thirty-seven-year-old electrical engineer from Egypt, had been jailed for more than three years in solitary confinement on the basis of secret INS evidence allegedly linking him to a terrorist organisation. On 30 July 1999, US federal immigration judge, Donn Livingston, denounced the use of secret evidence, never revealed to either Ahmed or his lawyers, and recommended that Ahmed be granted political asylum. In his ruling, Judge Livingston said: “The INS seems to be asking the court to abdicate its statutory and regulatory duty to decide the respondent’s asylum claim based on the evidence presented at the hearing. The court will respect the expertise of law-enforcement personnel and their dedication to protecting our country. But the court will not defer to their credibility findings, their weighing of the evidence or their interpretations of law ... [T]hese issues are to be resolved by the [immigration] court which will make its own findings and conclusions based on the evidence presented.

 

“It appears that some of the classified information could be gathered from non-confidential sources. If the information could be presented in open court as coming from an unclassified source, the respondent would be able to confront the evidence against him. This is certainly a desirable feature of any court proceeding. Indeed, the court is concerned about the possibility for abuse in this area. Imagine, for example, an agency, which has two sources of evidence of a particular fact. One source is classified and the other source is public. If the agency chooses to present the information through the public source, the respondent will have an opportunity to confront the evidence. However, if the agency chooses to present the evidence through a classified source, the evidence could remain unassailable. Imagine further the situation where an agency has classified information of a certain fact, but does not yet have a public source for that fact. If the agency knows it can present the classified information in camera, what is the incentive to expend investigatory resources on developing a public source for that evidence?

“Virtually all of the secret information is hearsay not subject to any exception to the hearsay rule. Most of this information is double or triple hearsay ...

 

“The government’s failure to respond to the credibility questions leaves the court utterly unable to assess the reliability of the government’s hearsay evidence. The FBI urges the court to defer to its assessment of credibility ... However, the FBI has refused to provide the court with evidence from which the court could make an independent evaluation of the credibility of its sources. In light of that refusal, this court must reject the secret information as being of unproven reliability.”

 

Despite Judge Livingston’s ruling, Ahmed remained in detention until November 1999, when he was freed after Attorney-General Janet Reno personally decided to end further INS efforts to keep him in jail.

 

Though the courts have repeatedly ruled against the INS in secret evidence cases, it continued to bring them. The cost has been substantial: years of detention based on unknown, unverified and unverifiable allegations that all too often turn out to be too flimsy to justify such detention. In fact, in every case where evidence was declassified or summaries given to the detainees, the evidence was fully refuted and the detainees released.

 

Moreover, in the secret evidence case of Nasser Ahmed, who was released after three years in detention, an FBI agent testified in court that Ahmed should not be released because “his prominence in the community will increase [and] he will be more well known, lending to his credibility in the community, both inside the United States and outside the United States”. The FBI’s statement quickly spread throughout the Arab and Muslim communities and substantiated their belief that the use of secret evidence is politically motivated and designed to prevent them from exercising free expression.

 

Deportation proceedings relying on secret evidence fly in the face of every democratic notion of fundamental fairness and due process. By their very nature, secret allegations are unreliable and can be manipulated to serve political agendas. Simply put, it is nearly impossible to use secret evidence without abuse. Secret evidence allows law-enforcement agencies to eliminate the problem of missing links in the chain of evidence. This is so convenient that the temptation for abuse is great.

 

While Arab immigrants are currently the principal targets of deportation proceedings using secret evidence, the practice poses a direct threat to the constitutional rights and political freedoms of all Americans. Why? If government prosecutors succeed in using secret evidence against politically vulnerable Arabs and Muslims from the Middle East today, they will employ it against immigrants from other countries tomorrow. And if secret evidence becomes acceptable for use against immigrants, it may not be long before the government starts to wield it as a legal weapon against citizens. Fortunately, however, a bill that will abolish the use of secret evidence in its present form may soon become law.

Humanitarian Fund-Raising

As mentioned above, the criminalisation of international fund-raising and humanitarian aid has been accomplished by the Anti-terrorism and Effective Death Penalty Act of 1996. This law makes it a crime knowingly to raise and contribute funds, donate educational and humanitarian aid, or provide lodging, transportation or other forms of “material support”, to designated foreign groups. Those convicted of this new federal crime face up to ten years in prison.

 

Perhaps the most puzzling aspect of the anti-fund-raising provision is that it was entirely unnecessary. Prior to the passage of the Anti-terrorism Act, it was already illegal to support the terrorist acts of any group or person if those acts were crimes under US law. Under both common and statutory law, aiding and abetting the commission of a crime is punishable to the same extent as the actual perpetration of the crime. Additionally, Congress passed (in the 1994 crime bill) a law specifically prohibiting material support for certain terrorist crimes at home or abroad. Yet Congress chose to prohibit fund-raising for the lawful activities of organisations designated terrorist by the secretary of state, thus introducing guilt by association and political and foreign policy questions into the criminal process. It is precisely because the act was not necessary that many conclude it was designed to do nothing more than punish unpopular, but legal, political views and activities.

The Use of Grand Juries

The grand jury process is as old as the United States itself. Equally long-standing are criticisms of the system and its susceptibility to political manipulation. Recently, critics have noted that the juries are being used as intelligence-gathering operations against Arab and Muslim Americans and immigrants, rather than to determine whether sufficient evidence exists to charge a suspected criminal with a particular crime.

 

Whether or not witnesses must answer all questions put to them is a subject of intense debate among legal scholars. Most certainly, grand jury witnesses are protected by the Fifth Amendment of the US Constitution and do not have to testify about anything that might incriminate them. Grand jury witnesses and their attorneys have also argued that they are protected by the First Amendment’s guarantee of freedom of speech and association, and thus do not have to testify about their organisational affiliations. These constitutional claims have met varying degrees of success in the courts.

 

When a witness claims a Fifth Amendment right against self-incrimination, it is usual for the prosecutor to give that person immunity. The witness thereby loses the Fifth Amendment right not to testify and can be charged with civil contempt for refusing to do so. As a defence against the civil contempt charge, the witness can raise his First Amendment rights. A grand jury witness convicted of civil contempt for refusing to testify can serve up to eighteen months in a federal prison.

 

The ADC has followed and reported on a number of well-documented grand jury cases in which the system may have been abused. An example is the proceedings against Dr Abdelhaleem Ashqar and Mr Ismail Elbarasse. Their predicaments began in 1996 when Dr Mousa Abu Marzook, a US resident and the president of the political bureau of the Islamic Resistance Movement (Hamas), was jailed for nearly two years with no charges pending against him. The investigation uncovered no wrongdoing. However, lawful opposition to the Oslo “peace process” in the form of political expression and activism became a criterion for government harassment and incrimination.

 

In the Abu Marzook grand jury proceeding, both Dr Ashqar and Mr Elbarasse were asked if they knew Dr Abu Marzook and other “Islamic” activists in the United States or Palestine.

 

In February of 1998, Dr Ashqar and Mr Elbarasse were subpoenaed to appear before a federal grand jury sitting in New York. By now the two men had become suspicious of the basis for their questioning. They decided to stop answering all questions. Dr Ashqar immediately informed the US Attorney’s Office that he would invoke his Fifth Amendment right not to answer any question put to him. Dr Elbarasse did the same. Dr Ashqar told the Grand Jury:

 

I respectfully refuse to answer any question put to me other than my name, address and occupation on the grounds that to do so would violate my long-held and unshakeable religious, political and personal beliefs and that my answers will be used against my friends, family and colleagues in the Palestinian liberation movement. I would rather die than betray my beliefs and commitment to freedom and democracy for Palestine. I will never give evidence or co-operate in any way with this grand jury, no matter what the consequences to me.

 

The US Attorney’s Office responded by obtaining a grant of immunity from a federal judge. Dr Ashqar and Mr Elbarasse were jailed for civil contempt and Ashqar went on a six-month hunger strike in which he almost died. (Dr Ashqar was finally released from custody on 23 August 1998. Mr Elbarasse was released soon afterwards.)

Seizing Assets

On 10 June 1998, federal prosecutors and FBI agents in Chicago seized $1.4 million worth of assets belonging to Mohammad Salah and the Qur’anic Literacy Institute, a Chicago-area group that translates Islamic texts. The assets seized include the house where Salah lives with his wife and family and the bank accounts of the institute. The government claims that the assets were part of a money-laundering operation to finance attacks on Israel.

 

In a civil forfeiture, the government confiscates assets and the burden is then on the owner to prove that the assets were not part of any illegal activities. This upside-down notion of justice has been criticised by almost everyone who has been involved in the process. On 19 June 1998, an editorial in the Chicago Tribune criticised the seizure of the assets of Salah and the Qur’anic Literacy Institute as part of a “through-the-looking-glass scenario” that is “not the American way of justice”.

 

Even more disturbing is that the case against Salah and the institute is built almost entirely on a “confession” that Salah allegedly made while being tortured by the Israeli authorities. Even the Chicago Tribune recognised that this “confession” was “without benefit of even the pretence of due process”.

 

Interestingly, it is not the Anti-terrorism Act which the government is using to seize these assets. In this case, it used an executive order that has a similar effect. The act does not permit the seizure of assets belonging to a private individual or organisation; it only allows the freezing of assets within a financial institution when the government believes that a “foreign terrorist organisation” has an interest in the funds.

 

As a result of the seizure, Salah was barred from having any financial dealings, even with his lawyer or doctor, without obtaining special Treasury Department licences. While accusing Salah in court papers of raising money to fund attacks against Israel, the government has not charged him with committing any crime. Instead, by bringing a civil case, the government sought to avoid the constitutional protections accorded criminal defendants. Civil forfeiture has never been applied to a group alleged to have funded political activities abroad. It has been used quite frequently in cases involving illegal drug activity and racketeering.

Xenophobia

Up until 1965, the United States based its immigration policy on race and ethnicity. For the most part, US immigration policy created quotas that favoured those from northern and western Europe. In 1965, Congress abandoned the national-origins quota system in favour of a more neutral preference system. This change reflected the ever-changing and progressive American value system and ideals.

 

Recently, one member of the Senate has expressed interest in returning to an ethnically discriminatory policy—this time in education. This idea goes back to a 1988 subcommittee hearing on terrorism, when Senator Dianne Feinstein expressed extreme alarm at the fact that most Middle Easterners who come to study in the United States major in science. To the senator, this outrageous pursuit of education meant only one thing: these students were studying science in order to be more effective terrorists or to help their nations build weapons of mass destruction. It was of no consequence to her that Middle Easterners study science because the economies of their countries demand it.

 

Nevertheless, Senator Feinstein proposed to solve the serious problem of Middle Easterners seeking a college education by limiting the areas of study they would be allowed to pursue. She also proposed a tracking system to monitor Middle Eastern students during their stay in the United States. Her comments and proposals were outrageous not just because they were based on racism, bigotry and stereotypes, but also because they would have been useless in the fight against terrorism. Terrorism does not have a single modus operandi, as we learned after the bombing of the federal building in Oklahoma. Furthermore, a person who wanted to use his/her education for terrorism would not be hindered by Senator Feinstein’s proposals. There are many countries in the world that would allow students to study anything, including nuclear engineering, if those students could pay the tuition. Moreover, just about any discipline or skill, including basket weaving, can be used for violent purposes. How can anyone predict what a student will utilise his or her skills for? The sole result of Senator Feinstein’s proposals would have been to limit academic freedom, curtail civil liberties and create ethnic tension and hostility in the United States. Proposals such as those of Senator Feinstein are contrary to every American notion of justice, fairness and equality. We must never allow such proposals to become reality.

Passenger Profiling

Another problematic step has been the development of a computer profiling system to identify potential terrorists among air travellers. The use of profiling was instituted after the TWA Flight 800 crash in 1996. Following the crash, speculation abounded that a bomb had been planted by Arab or Muslim terrorists. As in the case of the Oklahoma City and Atlanta Olympic bombings, this rush to judgement by the media, some officials and terrorism “experts” proved erroneous. Nonetheless, a Commission on Aviation Safety and Security instituted a “profiling” system of airline security. The policies recommended by the commission are now being implemented by the Federal Aviation Administration (FAA), as well as domestic and foreign airlines. These policies have resulted in the singling out and humiliation of Arab-American travellers.

 

The profiling of airline passengers is generally performed by airline personnel during check-in, as well as at the department gate before boarding. When a traveller is selected by a computer, he or she is subjected to greater scrutiny than other passengers, including questioning, interrogation and intrusive searches.

 

Airlines cite reasons of confidentiality for not releasing profiling criteria. Neither the airlines nor the FAA take responsibility for the ethnic bias and discrimination involved in the profiling system. When a passenger complains that he or she was treated unfairly, the airlines typically respond that they are simply applying standards imposed by the FAA. In turn, the FAA contends that the airlines misinterpret and misapply its “non-biased” and “non-discriminatory” profiling criteria. Arab-American victims of discrimination at airports find they have little recourse for action when both the FAA and the airlines deny responsibility for the negative impact of the profiling system.

 

It has been almost four years since profiling was instituted to enhance airline security. In that time, there has been no evidence that profiling in any way enhances security. Even the FAA admits that it is impossible to determine if the methods used do in fact enhance security.

Security and Liberty

One of the biggest challenges faced by investigative and law-enforcement agencies is how to distinguish between those who use violence to send a message and those who operate within the law. Clearly, even in societies where civil liberties and fairness are cherished, the possibility cannot be eliminated that the innocent may be harassed or wrongfully implicated during the process of investigating and preventing criminal activity. This reality, however, does not mean that governments should not always be vigilant when it comes to protecting civil liberties. In fact, vigilance is what separates those nations known for violating human and civil rights from those known for respecting such rights. As for the United States, it is more than ever having to ask how to investigate and prevent criminal acts such as the World Trade Center and Oklahoma City bombings without targeting the innocent, especially those who share the same background or ideology as those who resort to violence.

 

Essential questions to ask in the investigation of violent criminal activity are who should be investigated and for how long? Should the government engage in the practice of guilt by association in the hope that it can prevent violence? Should the government continue to prohibit all support for groups that provide humanitarian activities when those same groups or their constituents also engage in violent activities? These questions are central to finding a balance between protecting civil liberties and fighting terrorism.

 

Presently, when it comes to Americans or immigrants of Arab and Muslim background, the approach of the law-enforcement authorities appears to be to designate them as suspect and to investigate their lawful activities. This is the type of intelligence model that leads to guilt by association, which in 1994 the Clinton administration argued was unacceptable.

 

Furthermore, the United States must reinstate the Edwards Amendment, which prohibited the monitoring of lawful First Amendment activities. Reinstating the Edwards Amendment would support the First Amendment view that it is not the government’s place to suppress ideas because they are “wrong” or “unpopular”. Rather, as Justice Oliver Wendell Holmes put it in Abrams v. the United States, 1919, there should be a “free trade in ideas”, with the truth becoming accepted through “the competition of the market”.

Endnotes

1. New York Times, 28 August 1995.