LAW PROFESSORS' LETTER ON HR 1710 December 6, 1995 Rep. Newt Gingrich Speaker of the House U.S. Capitol Washington, DC 20515 RE: HR 1710, the "Comprehensive Antiterrorism Act of 1995" Dear Speaker Gingrich: We the undersigned are law professors at a number of leading American law schools. We are writing to urge the withdrawal or defeat of HR 1710, the Comprehensive Antiterrorism Act of 1995. Although we hold different views on a number of political and legal issues, we are united in our belief mat this Act poses an unwarranted threat to the civil liberties of law-abiding Americans. Although this Act is offered as a response to the Oklahoma City bombing, there is no reason to believe that its provisions would have prevented that tragedy had they been in force at the time. Indeed, many of its provisionsÑsuch as those aimed at immigration - - have nothing whatsoever to do with the American citizens accused of having committed that crime. Instead, the Act contains a number of drastic expansions to law enforcement power that have been requested, and denied, in the past. The tragedy of the Oklahoma City bombing is no reason to grant such ill-advised powers today. Although the problems posed by the Act are too numerous to mention in this short letter, here are a few of the most significant: An Overbroad Definition of "Terrorism": The Act defines terrorism so broadly as to encompass things like the hijacking of a bicycle or the vandalism of street signs using a .22 caliber rifle. In the process it federalizes many minor crimes that are already adequately dealt with under state law, and opens the door for selective prosecution of individuals as "terrorists" based on their political views or on the political needs of federal officials at the time. Assault on Freedoms of Speech and Association: The Act grants authority to the Secretary of State to designate any foreign group a "terrorist" organization. Once that is done, members of that group (even if guilty of no "terrorist" acts themselves) would be barred from entering the United States, and American citizens would be barred from providing "support" for any activities of that group, even if those activities were entirely legal, non-violent, and laudable. The Act also repeals existing Law Professors' Letter/HR1710 December 6, 1995 Page 2 statutory prohibitions on federal investigations of groups based solely on their First Amendment activities. This repeal invites a reprise of the bad old days of FBI COINTELPRO investigations (and harassment) of antiwar groups, and of similar investigations into U.S. groups active in Central American issues during the 1980s. Expanded Use of Wiretaps: Americans are already concerned about the erosion of privacy stemming from new technologies, but this bill would vastly expand those concerns by vastly expanding the ability of federal authorities to conduct wiretaps and other forms of electronic surveillance. Where there is a genuine threat of terrorism, existing laws already permit necessary surveillance. The expansion of authority granted here would permit much unnecessary surveillance, at the expense of citizens' privacy. It would also encourage "fishing expeditions" against politically unpopular groups or individuals. Secret Evidence in Deportation Hearings: The Act permits the deportation of legal aliens based on secret evidence that would not be shared with the alien. Resident aliens would be appointed a "special attorney" possessing a security clearance who could review the evidence and challenge it in camera but who would be barred from disclosing the evidence to the alien, or the alien's immigration attorney. Federal courts have consistently ruled that reliance on secret evidence violates due process rights. These procedures pose serious constitutional problems, and dangerously impair the lawyer/client relationship. They are also unnecessary, as the federal government already possesses more than adequate power under the immigration and criminal laws to deal with aliens suspected of serious crimes. It is also difficult to see what this provision, and the many other immigration-related provisions in the Act, have to do with the Oklahoma City bombing (which is frequently presented as the reason for this legislation), given that those currently awaiting trial for that crime are American citizens. An Expanded Military Role in Law Enforcement: Americans have traditionally been suspicious of military involvement in law enforcement. The use of military forces in a police role tends to be associated with police states, not with free countries. Soldiers are not trained to respect constitutional rights, or to use the minimum force necessary. For this reason the Posse Committals Act, 18 U.S.C ¤1385 forbids the use of the military in a law-enforcement role. More recent legislation creates a narrow exception in the case of nuclear weapons or materials, where civilian authorities are not capable of enforcing the law. 18 U.S.C ¤831(e). Though purportedly aimed at expanding that authority to deal with chemical and biological weapons, this Act goes substantially beyond previous limits, dramatically expanding the ability of the Attorney General to call on the federal military for law enforcement purposes. There is no need for such authority, and this expansion can only serve to inflame the concerns of those citizensÑon both me left and the right of the political spectrum - Law Professors' Letter/HR1710 December 6, 1995 Page 3 - who already fear the militarization of law enforcement that has occurred over the past two decades. The many other defects in this legislation have already been pointed out by groups across the political spectrum. Americans have valued their rights over many years. This legislation makes dangerous and unnecessary inroads into many rights valued by Americans, and would only serve to inflame - or perhaps justifyÑthe fears of those Americans who worry that the federal government threatens constitutional rights that they hold dear. We urge you to recognize that the best defense against terrorism is a free and open society, and to put a stop to this dangerous and unneeded legislation. List of Signatories (Affiliations indicated for identification only) (List as of Tuesday, 12/5; still under formation) Prof. Randy Barnett Boston University School of Law Prof. Charles Baron Boston College Law School Prof. Edwin Butterfoss Hamline University Law School Prof. Neil Cohen University of Tennessee Law College Prof. David Cole Georgetown University Law School Prof. Norman Dorsen New York University School of Law Prof. Steven Duke Yale Law School Prof. Thomas Grey Stanford Law School Law Professors' Letter/HR1710 December 6, 1995 Page 4 Prof. Nicholas Johnson Fordham University Law School Prof. Kenneth Karst UCLA School of Law Prof Charles Lawrence Georgetown University Law School Prof. David Mayer Capital University Law School Prof. Joseph Olson Hamline University School of Law Prof. Jeffrey S. Parker George Mason University School of Law Prof. Glenn Reynolds University of Tennessee Law College Prof. Louis M. Seidman Georgetown University Law Center Prof. Steven Shiffrin Cornell University Prof. William Van Alstyne Duke University Copies to: Rep. Richard Armey House Majority Leader Rep. Richard Gephardt House Minority Leader Rep. David Bonior House Minority Whip