In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws

• Author: Jennifer Van Bergen
• Position: B A., New York University; J.D., Benjamin N. Cardozo School of Law; Adjunct Professor, The New School for Social Researc
• Pages: 107-160

Jennifer Van Bergen - B A., New York University; J.D., Benjamin N. Cardozo School of Law; Adjunct Professor, The New School for Social Research; NLG Member; Vice Chair Broward, Florida ACLU; Chair Broward Bill of Rights Defense Coalition. I wish to thank Jeanne Baker, C. William Michaels & Marc Rohr for their comments and El Gates for his neverending guiding light.

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I Introduction

We must choose between freedom and fear-we cannot have both. If the citizens of the United States persist in being afraid, the real rulers of this country will be fanatics ftred with a zeal to save grown men from objectionable ideas by putting them under the care of official nursemaids.¹

-Zechariah Chafee, Jr , The Blessings of Liberty (1956)

This year we are witnessing not just a series of brutal but fundamentally independent human rights violations committed by disparate governments around the globe. This year we are witnessing the orchestrated destruction by the United States of the frague scaffolding on which international human rights have been builty painstakinglyy bit by bit by bity since World War II.²

-Bill Schulz, Executive Director, Amnesty International

Outy damnedspot! Outy I say! One: two: why, then "tis time to do"t. Hell is murky. Fiey my lord, fie! A soldier, and afeard? What need we fiar who knows ity when none can cali our pow r to accompti ³

Lady Macbeth

It has become popular since the terrorist attacks of September 11, 2001, to say that we now live in a dififerent world than we did before. We say it is necessary to rethink the balance between civil liberties and national security. Some even say that this is a time of war and inter arma silent legis: in time of war, law is silent.

I do not agree with these statements. While it is true that Americans had not experienced an attack on American soil since the Civil War (not counting Pearl Harbor, which was an attack on a naval base), and it Page 109 is certainly true that the September llth attacks rightfully changed how many Americans feel and think about terrorism and security, it is also probably true that Americans, the greatest consumers of nonrenewable resources in the world, became complacent in their imagined bubble of safety from the violent world outside the United States from which they obtain much of those resources, and that the September llth attacks woke us up in a particularly brutal way to our own inherent human vulnerability.

It is not true, however, that the world is substantially different now than it was befo re September llth. Nor is it true that terrorists are a new and vastly different breed of criminals. Big business, violent crime, war, and crimes against humanity were as prevalent before as after the attacks. Spies, saboteurs, traitors, assassins, and terrorists have been acting in groups or alone since the beginnings of human history.⁴ Their existence did not prevent the development of civil liberties. On the contrary, it has made necessary the development of and dedication to civil liberties and the rule of law.

Note that neither the presence of spies (such as Major Andre) nor traitors (such as Benedict Arnold) during the American Revolution prevented the formulation and ratification of the United States Constitution and the Bill of Rights. The refrain of Patrick Henry was not "Give me liberty only if it means I'm secure!" He said: "Give me liberty, or give me death! Americans who risked or gave their lives in the Revolutionary War fought for civil liberties, and they knew that those liberties could never be sacrificed in the name of war. This conclusion has been confirmed by the wisdom of those who enacted the Hague and Geneva Conventions after World War I, clarified and extended the rights protected under those treaties, in other treaties, and formulated the Nuremberg Charter after World War II. Furthermore, so-called "terrorist cases" are in many ways similar to the Cold War "communist cases" in legal analysis.

The difference today is the existence of the internet and nuclear arms and other weapons of mass destruction, including biological and chemical weapons (none of which make civil liberties less necessary). The difference is that Americans now feel hated and can perhaps be persuaded to believe on some subconscious level that we deserve to sac-Page 110rifice our most prized and sacred "inalienable rights." The difference since September llth is that we have now accepted regulations and practices, have enacted laws, and submitted to Executive orders that rend the very fabric of our own democratic rule of law, setting examples to the rest of the world that could set the course of civilization back centuries.

Nonetheless, it did not take September llth for lawmakers in this country to enact such laws in the name of fighting terrorism. Prior to passage of the post-September 11 anti-terrorism act known as the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act, or USAPA,⁵ we had passed anti-terrorist legislation, known as the Anti-Terrorism Effective Death Penalty Act, or AEDPA.⁶

AEDPA, enacted in 1996, laid the foundation for USAPA, giving the U.S. Government powers it had never before known. Among other powers, AEDPA gave the Secretary of State the authority to designate foreign groups, with virtually no judicial oversight, as foreign terrorist organizations.⁷ This power would perhaps warrant no more attention than the power of the President to command troops if it were not for two facts: (1) the President has declared an ongoing "war on terrorism," a perpetual state of national emergency, and (2) the designation statute Page 111 interacts in constitutionally unsound ways with a criminal statute that is being applied more and more frequently-that which criminalizes material support of designated foreign terrorist organizations. This arricie will discuss this interaction in some depth. As for the war on terrorism, we cannot fight it with unconstitutional laws.

II The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA): Criminalizing Terrorism

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted three years after the World Trade Center bombing and one year after the Oklahoma City bombing.

According to section 301(b) of AEDPA, its purpose was "to provide the Federal Government the fullest possible basis, consistent with the Constitution, to prevent persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities."⁸ Subparagraph (a) of the same section enumerated seven findings: (1) international terrorism is a serious and deadly problem that threatens the vital interests of the United States; (2) the Constitution confers upon Congress the power to punish crimes against the law of nations and to carry out the treaty obligations of the United States, and therefore Congress may by law impose penalties relating to the provision of material support to foreign organizations engaged in terrorist activity; (3) the power of the United States over immigration and naturalization permits the exclusion from the United States of persons belonging to international terrorist organizations; (4) international terrorism affects the interstate and foreign commerce of the United States by harming international trade and market stability, and limiting international travel by United States citizens as well as foreign visitors to the United States; (5) international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage; Page 112 (6) some foreign terrorist organizations, acting through affiliated groups or individuals, raise significant funds within the United States, or use the United States as a conduit for the receipt of funds raised in other nations; and (7) foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.⁹

Notice the focus on material support of foreign terrorist organizations. Note also the strict liability language in finding (7). This...