Terrorism Control and the Constitution

Author:David Cole

Page 2674

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...

To continue reading