-
5. A Closer Look at Anti-Terrorism Law: American-Arab Anti-Discrimination Committee v. Reno and the Construction of Aliens' Rights
- Temple University Press
- Chapter
- Additional Information
Kathleen M. Moore 5 A Closer Look at Anti-Terrorism Law: American-Arab Anti-Discrimination Committee v. Reno and the Construction ofAliens' Rights Recent legislation entitled the Anti-Terrorism and Effective Death Penalty Act1, signed into law on April 24, I996, seems to a number of its critics to represent a perversion of justice within which constitutional rights have been sacrificed in the name of national security. The legislative debates show that members of Congress constructed this law, and the legal classification of "alien terrorist"2 on which it turns, for apparently irreconcilable ends: first, to combat terrorism by removing so-called aliens3 and fining4 permanent residents and citizens who support or are affiliated with a "terrorist organization ,"5 and second, to preserve a modicum of due process guarantees, including very limited summary disclosure of classified information, for "alien" targets of deportation proceedings. Under the terms of this law, the government may deport an immigrant even if she or he has not committed any crime. Aliens will not be given sufficient opportunity to defend themselves in deportation hearings and, on losing their cases, must leave the United States, forfeiting any opportunity to petition the government for redress or to make an appeal.6 Congress effectively has created a new class of persons who are defined as deportable merely because of their association with a disfavored group, not because they personally committed a terrorist act. A provision of the anti-terrorism law creates a new court, called the removal court, which hears the government's deportation cases against immigrants behind a cloak of secrecy,? This is expected to facilitate the deportation of suspected terrorists because it allows the government to present evidence against suspected alien terrorists in secret, nonadversarial sessions in which the defendant is not present and does not have a chance to respond to the evidence presented by the government. The government argued that it needed the secret removal court because deportation proceedings until now have A CLOSER LOOK AT ANTI-TERRORISM LAW 85 been conducted as public hearings, and the government is constrained in using classified information when it pertains to national security concerns for fear of revealing the identity of intelligence sources. Under the current law, if the removal court accepts the government's case against a suspected alien terrorist, the defendant receives an unclassified summary of the evidence against her or him, without showing the identity of informants, to be used in preparing a defense. The new law requires only that the unclassified summary be specific enough to permit the alien to "prepare a defense" against the noncriminal charges in deportation hearings, a standard that is lower than the one prevailing in criminal cases in which classified evidence is used. In criminal cases, the government's unclassified summary must "provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information ."8 The removal court judges and the government in effect are playing with a full deck of cards, but the defendant in a removal court proceeding has only one-half of the cards, and a few of the aces are missing.9 The creation of the removal court increases the use of secrecy in American jurisprudence , which in itself is a disturbing trend. It also raises constitutional questions about what sort of due process guarantees the United States is required to provide before kicking suspected terrorists out of the country and how far the First Amendment goes in protecting the free speech and associational rights of immigrants and others who may provide material support to what the government considers to be unpopular or threatenmg causes. The anti-terrorism law is infirm for several reasons,10 not the least of which is that it fails to accomplish the disparate purposes for which it ostensibly was intended. It neither combats terrorism nor provides adequate procedural guarantees for persons accused of associating with blacklisted terrorist groups and are thereby subject to deportation . Any attempt to reflect on the implications of this law for the members of groups that are affected by it, who are most likely to be subject to its provisions and to be silenced by them, must raise a host of questions. How does this law distinguish between "insiders" and "outsiders" in a normatively defensible way? Does it attempt to secure or undermine a sense of full membership in the social and political life of society for all individuals within that society? Can it keep allegiance to the...