Bill of Wrongs

The terrors of counterterrorism.

WHILE THE MEDIA'S gaze remains fixed on a budget impasse unsurpassed in its cynicism--a fight the Republicans have already won, now portrayed as a fiercely principled debate even though its main point of contention is whether seniors will pay $77 or $88 a month for Medicare in 2002--a long-stalled counterterrorism act is approaching a vote on the House floor. The bill, H.R. 2703, would go a great distance toward gutting what's left of the Bill of Rights and declaring American citizens the presumptive enemy of their government.

The original rendition of the terrorism bill came down from the Clinton White House last winter, well before Oklahoma City; the Senate passed its version, S. 735, back in June by a 91-8 vote. (Paul Wellstone was one of the six Democrats to vote against it.) Among the fearsome provisions of the main House bill, H.R. 1710:

§ Increased FBI access to private citizens' credit, travel, and employment records without any reasonable indication of criminal activity.

§ A definition of "terrorism" that includes many acts already covered under state law, some of which amount to simple vandalism. In the words of a December 6 letter to House leaders signed by groups ranging from the ACLU to the NRA, "the following unlawful acts would become 'terrorism' under federal law: any crime of passion involving a gun; cutting the brake cable of a parked bicycle with intent to injure the rider or 'hijacking' the bicycle; using a gun to cause 'substantial damage' to a highway sign, or even shooting at the sign and missing or merely planning with one's friends to shoot at the highway sign." Such broad standards, the letter goes on to note, guarantee a rise in the volume of "politically motivated selective enforcement."

§ Increased wiretapping powers, again without any reference to criminal activity or intent. As one ACLU brief puts it, "The bill would authorize wiretapping in more circumstances, more wiretapping without a prior court order, more roving wiretaps, and courtroom use of evidence gathered in a wiretap when law enforcement officers acted illegally." The original language of the bill included funds for digitally retrofitting the entire phone system, a measure to be paid for by a 40 percent increase in all federal civil fines, including those of the EPA and OSHA.

§ Executive branch authority to decree any organization with overseas ties or non-U.S. citizens among its membership a terrorist group, and to forbid financial support for even that organization's legal activities under penalty of immediate deportation for aliens and up to 10 years in prison for U.S. citizens. And the executive's declaratory power is not subject to challenge by citizens or the courts; once it is said, it becomes so. Had this bill been law during the 1980s, it would have been illegal to give money to the ANC, the IRA, or Central American aid groups such as CISPES. Today it would no doubt be illegal to buy a computer for the Zapatistas, or to engage in union organizing across the U.S./Mexico border--which, after all, is a prima facie conspiracy against free trade in the national interest.

§ The express power to deport aliens on the basis of evidence kept secret from them and their attorneys.

On December 5 H.R. 2703 was introduced as a compromise version. It deleted some of 1710's language with regard to wiretapping, along with a passage allowing for increased use of the military in domestic policing operations and a reference to guns as part of the definition of "terrorism." Whether those measures, particularly the wiretapping sections, would stay out once the bill reached conference committee is an open question. Many of the same features are in the Senate bill already passed.

As a matter of realpolitik, the terrorism bill's troubles in the House are to be credited almost entirely to the so-called "gun nuts" across the land: The Comprehensive Counterterrorism Act of 1995 would probably be law already if it weren't for the efforts of Republican freshmen in the House, acting principally on behalf of a gun lobby still outraged over Waco and Ruby Ridge and vehemently opposed to any expansion of federal police powers. Liberals, by and large, are nowhere to be seen.

But then they were nowhere to be seen when the bill's Cold War precursor, the anti-immigrant, anti-free speech McCarran-Walter Act, passed in 1950. (That was the era when liberals like our own Hubert Humphrey supported bills to construct domestic internment camps for dissidents.) McCarran-Walter was finally repealed in 1990, but the present legislation goes it one better. In addition to reinstating its principle of guilt by association, the counterterrorism package would mark the first time in American history that secret trials, conducted outside the view of public and defendant alike, had been made the law of the land. The bill applies the principle to deportation proceedings; how long until some bright soul on the federal bench decides to extend it to domestic criminal prosecutions? Surely aliens are not the only ones capable of crimes against the national security.

THE POISON PILL: H.R. 2703 tacks on a raft of new habeas corpus restrictions designed to undermine still further the rights of those convicted of crimes, including capital crimes, to mount appeals. According to its terms, new limits would be placed on the timing and number of appeals. And convictions could not be reversed merely because they breached the Constitution, but only if the state court acted in an "unreasonable" manner in committing the error--a convenient rhetorical ploy for sweeping aside those bothersome 200-year-old protections altogether. The consequences would be enormous. A 1991 American Bar Association study found that 40 percent of the capital cases reviewed in federal courts since 1976 have contained errors requiring reversal. They range from racism and incompetent counsel to exculpatory evidence knowingly withheld by prosecutors.

As for the not-infrequent capital cases when individuals are able to produce new evidence pointing to their innocence, the Supreme Court recently established a benchmark: The evidence had to make the defendant appear "more likely than not" to be innocent. H.R. 2703 substitutes the much higher standard of "clear and convincing" evidence of one's innocence. It's a burn-'em-all bill.

DIVORCE AMERICAN STYLE: In October the Center for the American Experiment--a local think tank, loosely speaking--brought a speaker named William Galston to town. Galston's spiel revolved around the reform of American divorce law in the interest of families;
by way of example he extolled waiting periods of up to a year before divorces could be obtained, and suggested an end to no-fault divorce standards in favor of older ones such as demonstrable abuse or outright desertion. So far as unhappy wives are concerned, in other words, the rule should be that unless the husband is abusing his property, he ought to face a diminished threat of dispossession. Unhappy husbands would appear to have even less recourse, unless they could get their womenfolk to cuff them around a bit. These themes have played on the Christian right for some time, but Galston isn't of that crowd. He's a former Clinton Administration adviser; his original essay on the subject appeared in Rights and Responsibilities, the journal of the communitarian movement so fulsomely praised by Clinton around the time of his inaugural.

THE DEMS' BEST FRIEND: There's little question that Newt Gingrich's ethical, uh, lapses are of a magnitude sufficient to get people kicked out in the past. It wasn't so long ago that Gingrich helped show Jim Wright the door for the sort of chicanery--specifically, bulk book sales as cover for political fundraising--that he now stands accused of himself. So why did the Democrats on the House Ethics Committee agree to give such a limited mandate to its special investigator in the matter? To draw things out, perhaps. As Pat Schroeder pointed out on This Week With David Brinkley, it's entirely possible that the investigator will come back looking for more authority to probe Gingrich's ties with GOPAC, and the House Republicans will look dicey if they try to block it. If that happens, it will happen as campaign season draws closer; even if it doesn't, a wounded Gingrich is worth more to the Democrats at present than a deposed Gingrich. Until he became speaker, it was their standard-bearer who owned the mantle of most hated man in town.

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