Terrorism Control and the Constitution

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Terrorism inspires fear, politically charged rhetoric, and, too often, official overreaction. Much like Communism in the 1950s, terrorism today raises a number of constitutional issues. One reason it does so is that it is an inevitably politically loaded term of art, used more often to divide our enemies from our friends that to describe a particular form of conduct. Thus, in the 1980s the U.S. State Department routinely labeled the African National Congress and the Irish Republican Army as terrorist organizations, but did not assign that term to the Nicaraguan Contras or the Afghanistan Mujahedin, organizations that engaged in similar military tactics to further their insurrections, but whose battles the United States supported.

The most common definition of terrorism—the use of force against noncombatants in a manner designed to instill fear for political ends—would apply to virtually any bombing of an urban or residential area, and thus would cover the military activities of most nations that have been at war, including the United States. Under U.S. immigration law, "terrorist activity" is defined even more broadly, to encompass any unlawful use of a firearm to endanger person or property (except for personal monetary gain), a definition that would encompass injuries inflicted in a lovers' quarrel. Because of its almost limitless applicability, the term is almost always used selectively; when that selectivity is enacted into law, serious constitutional questions under the first amendment are implicated.

Government responses to terrorism thus far have raised two principal constitutional issues: (1) the extent to which those who associate with or support terrorist organizations may be punished; and (2) the extent to which the threat of terrorism justifies departures from due process.

As with Communism, the fear associated with terrorism has induced governments to act not only against those who actually engage in terrorism, but also against those who are merely associated in some way with groups that engage in terrorism. For example, the U.S. government has sought to expel and deny visas to foreign citizens for associating with so-called terrorist organizations, and has criminalized the provision of material support to such organizations, even where the support is intended to further (and in fact furthers) only the groups' wholly nonviolent and lawful activities.

These efforts repeat the excesses of mccarthyism. The anticommunist laws of the McCarthy Era presumed that anyone working with or assisting the Communists was guilty of the Communist Party's illegal ends, even if the individual cooperated only for legal purposes, such as labor organizing or civil rights activism. The injustices of that experiment with guilt by association led the Supreme Court to rule that where the government seeks to hold someone accountable for her connection to a group, it must prove that the individual specifically intended to further the group's unlawful ends. The requirement of "specific intent" distinguishes individual culpability from associational guilt.

Under the antiterrorism and effective death penalty act of 1996, however, persons who support the wholly lawful ends of designated groups face prison sentences. Under the law, the U.S. Secretary of State may designate any foreign group that uses unlawful force as "terrorist," and it then becomes a crime, punishable by ten years in prison, to support that group's lawful activities. The Secretary's designation is for all practical purposes unreviewable. If this law had been in place in the 1980s, the thousands of Americans who supported the lawful anti-apartheid work of the African National Congress in South Africa would have faced ten-year prison sentences. Congress justified the law on the theory that any support for a terrorist organization will free up resources that the organization can use for terrorist ends, but if that argument were accepted, guilt by association would be permissible wherever an organization had engaged in any unlawful activity, whether it be the African National Congress or the Democratic Party.

The terrorist threat has also induced the federal government to dispense with the most basic requisite of due process—the right to confront evidence against oneself. Citing national security concerns, the 1996 antiterrorism law authorizes the government to expel immigrants accused of connections to terrorism on the basis of secret evidence that neither the immigrant nor his attorney would ever see. The government may submit evidence behind closed doors to a judge, and may make secret arguments and take secret appeals outside the immigrant's presence. The government has not yet invoked this particular provision, but in other immigration settings the government has increasingly used secret evidence against immigrants.

The only two federal courts to address the issue in the past decade have ruled that the use of secret evidence against immigrants residing here violates due process. As Justice felix frankfurter said in a related setting, "Secrecy is not congenial to truth-seeking.… No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."

The government argues that secret evidence procedures are needed because it sometimes has classified information that it would like to use without having to reveal its source. 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. This rule applies in criminal court no matter how heinous the crime, no matter how sensitive the information, and no matter how serious the threat to national security. There simply is no other way in a fair system of justice, because it is impossible to defend oneself against secret evidence.

Proponents of the measures described above warn 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. Empowering government to blacklist disfavored groups and use secret evidence plays into the hands of zealots; it feeds their paranoia. At the same time, it is likely to drive extremists underground, where they will be more difficult to track. The United States has until now been relatively free of terrorism, and arguably that is because of, not in spite of, our political freedoms.

David Cole


Dempsey, James X. and Cole, David 1999 Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security. Los Angeles: First Amendment Foundation.

Heymann, Philip B. 1998 Terrorism and America: A Commonsense Strategy for a Democratic Society. Cambridge, Mass.: MIT Press.

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