Replies to post #437 on Questions that Leftists/Liberals Seemingly refuse (NOWHINE)

[Warhorse]

"terrorist organization," Section 411 does not prohibit the removal of a non-citizen on the grounds
that he solicited funds for, solicited membership for, or provided material support to, an
undesignated "terrorist organization" prior to the enactment of the Act.
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Endnotes
1. This article is an excerpt from the forthcoming book, Silencing Political Dissent: How
Post-September 11 Antiterrorism Measures Threaten Our Civil Liberties, by Nancy
Chang, which will be available from Seven Stories Press in March 2002. This article is
available as a free eBook on the Seven Stories Press website,
http://www.sevenstories.com.
2. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56.
3. Adam Clymer, "Antiterrorism Bill Passes; U.S. Gets Expanded Powers," The New York
Times, Oct. 26, 2001, at A1; Robin Toner and Neil A. Lewis, "House Passes Terrorism
Bill Much Like Senate's, but With 5-Year Limit," The New York Times, Oct. 13, 2001, at
B6; Jonathan Krim, "Anti-Terror Push Stirs Fears for Liberties; Rights Groups Unite To
Seek Safeguards," The Washington Post, Sept. 18, 2001, at A17; Mary Leonard, "Civil
Liberties," The Boston Globe, Sept. 21, 2001, at A13.
4. Adam Clymer, "Bush Quickly Signs Measure Aiding Antiterrorism Effort," The New York
Times, Oct. 27, 2001, at B5.
5. Amy Goldstein, et al., "A Deliberate Strategy of Disruption," Washington Post, Nov. 4,
2001, at A1.
6. See 66 Federal Register 48334-35 (Sept. 20, 2001). Congress denied the Attorney
General's request for the codification of this interim regulation in the USA PATRIOT Act
and limited to seven days the time aliens suspected of terrorist activity can be detained
without charge. Although the interim regulation would appear to be in tension with the
Act, it has not yet been rescinded.
This interim regulation appears to have been drafted with the holding of County of
Riverside v. McLaughlin, 500 U.S. 44 (1991), in mind. In County of Riverside, the
Supreme Court considered the Fourth Amendment rights of individuals who had been
arrested without a warrant and placed in detention. The Court ruled that after such an
arrestee has been held in detention for 48 hours, the burden shifts to the government to
show a bona fide emergency or an extraordinary circumstance for failing to provide the
arrestee with a judicial probable cause determination. In marked contrast to the arrestees
in County of Riverside, all of whom were arrested based on a probable cause finding by
the arresting officer, the interim regulation has been drafted to support the detention of
any non-citizen in this country, even when a basis for suspecting him of a criminal or
immigration violation is entirely lacking.
7. Dan Eggen, "Tough Anti-Terror Campaign Pledged," Washington Post, Oct. 26, 2001, at
A1.
8. This undated letter was sent to Senators Bob Graham, Orrin Hatch, Patrick Leahy, and
Richard Shelby. A copy of this letter is on file with the author.
9. Bryant Letter at p. 9 (emphasis added).
10. USA PATRIOT Act § 802, amending 18 U.S.C. § 2331.
11. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
12. USA PATRIOT Act § 411(a), amending 8 U.S.C. §1182(a)(3)(B)(i)(IV)(bb).
13. USA PATRIOT Act § 411(a), amending 8 U.S.C. §1182(a)(3)(B)(i)(VI).
14. Out of concern for the dangers that the USA PATRIOT Act's enhanced surveillance
procedures pose to our privacy, and over the strong objections of the Administration,
Congress has scheduled some-though not all-of these procedures to sunset, or expire,
on December 31, 2005. See USA PATRIOT Act § 224(a). However, Congress has
exempted from the operation of any sunset clause: (1) foreign intelligence investigations
that began before the sunset date, and (2) offenses that began or occurred before the
sunset date. See USA PATRIOT Act § 224(b).
15. 121 S. Ct. 2038, 2046 (2001).
16. Id.
17. USA PATRIOT Act § 213, amending 18 U.S.C. § 3103a. The definition of the term
"adverse result" in Section 213 is borrowed from a statute establishing the standards
under which the government may provide delayed notice when it searches stored email
and other wire and electronic communictions-searches that are not nearly as intrusive as
physical searches of one's home or office. The term is defined in 18 U.S.C. § 2705(a)(2)
as: "(A) endangering the life or physical safety of an individual; (B) flight from prosecution;
(C) destruction of or tampering with evidence; (D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation or unduly delaying a trial."
18. Wilson v. Arkansas, 514 U.S. 927, 929 (1995).
19. 899 F.2d 1324, 1337 (2d Cir. 1990).
20. 800 F.2d 1451, 1456 (9th Cir. 1986).
21. See http://www.cdt.org/security/011030doj.
22. USA PATRIOT Act § 215, amending 50 U.S.C. §§ 1862 and 1863.
23. 50 U.S.C. § 1801 et seq.
24. USA PATRIOT Act § 215, amending 50 U.S.C. 1862(a)(1).
25. USA PATRIOT Act § 215, amending 50 U.S.C. § 1862(c)(1).
26. See 18 U.S.C. § 1862(b)(2)(B), prior to its amendment by USA PATRIOT Act § 215.
27. FISA defines the term "United States persons" to include United States citizens and
lawful permanent residents. See 50 U.S.C. § 1801(i).
28. USA PATRIOT Act § 215, amending 50 U.S.C. § 1862(a)(1).
29. See U.S.C. § 1862(a), prior to its amendment by USA PATRIOT Act § 215.
30. USA PATRIOT Act § 215, amending 50 U.S.C. § 1862.
31. USA PATRIOT Act § 215, amending 50 U.S.C. § 1863.
32. Pen registers record telephone numbers of outgoing calls. See 18 U.S.C. § 3127(3). Trap
and trace devices record telephone numbers from which incoming calls originate. See 18
U.S.C. § 3127(4).
33. USA PATRIOT Act § 216(c)(3) amending 18 U.S.C. § 3127(4) (emphasis added).
34. USA PATRIOT Act § 216(b) amending 18 U.S.C. § 3123(a).
35. In the case of orders for pen registers and trap and trace devices, the Electronic
Communications Privacy Act of 1986 demands only "a certification by the applicant that
the information likely to be obtained is relevant to an ongoing criminal investigation." 18
U.S.C. §§ 3122(b)(2). See also Smith v. Maryland, 442 U.S. 735 (1979). However,
providing telephone dialing information does not reveal the contents of telephone
communications.
36. USA PATRIOT Act §216 (b) amending 18 U.S.C. § 3123(a)(3)(A).
37. Internet and Data Interception Capabilities Developed by the FBI, Statement of Dr.
Donald M. Kerr, Assistant Director, Laboratory Division, July 24, 2000.
38. USA PATRIOT Act § 216(b) amending 18 U.S.C. § 3123(b)(3).
39. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B) (emphasis added).
40. USA PATRIOT Act § 218, amending 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B)
(emphasis added).
41. 407 U.S. 297 (1972).
42. 407 U.S. at 313.
43. 407 U.S. at 320.
44. Id.
45. 407 U.S. at 317.
46. 407 U.S. at 309 (emphasis added).
47. United States v. Truong Dinh Hung, 629 F.2d 908, 915 (4th Cir. 1980) (emphasis added).
48. United States v. Johnson, 952 F.2d 565, 572 (9th Cir. 1992).
49. See supra Note 8 and the accompanying text.
50. The exclusionary rule is a judicially created rule that bars prosecutors from using
incriminating evidence obtained in violation of the Fourth Amendment to prove guilt. See,
e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961).
51. USA PATRIOT Act § 203(a), (b), and (d). The information that may be shared must
involve either "foreign intelligence or counterintelligence," as that term is defined in the
National Security Act of 1947, at 50 U.S.C. § 401a, or "foreign intelligence information,"
as that term is defined in Section 203(a)(1), (b)(2)(C), and (d)(2).
52. USA PATRIOT Act § 203(a), amending Rule 6(e)(3)(C) of the Federal Rules of Criminal
Procedure.
53. USA PATRIOT Act § 203(b), amending 18 U.S.C. § 2517(6).
54. USA PATRIOT Act §§ 203(d) and 905(a).
55. Select Committee to Study Governmental Operations with Respect to Intelligence
Activities, Intelligence Activities and the Rights of Americans, Final Report of the Senate
Select Committee to Study Governmental Operations with Respect to Intelligence
Activities, 94th Cong., 2nd Sess. (1976).
56. Under the Immigration and Nationality Act (INA), non-citizens who have or are engaged
in "terrorist activities" or activities that threaten the national security are subject to
removal from the United States. See 8 U.S.C. § 1227(a)(4)(A) and (B).
57. Since 1983, the United States government has defined the term "terrorism," "for statistical
and analytical purposes," as the "premeditated, politically motivated violence perpetrated
against noncombatant targets by subnational groups or clandestine agents, usually
intended to influence an audience." See Patterns of Global Terrorism 2000, United States
Department of State, Introduction (April 2001).
58. USA PATRIOT Act § 411(a), amending 8 U.S.C. §1182(a)(3)(B)(iii)(V)(b).
59. USA PATRIOT Act § 411(a), amending 8 U.S.C. §1182(a)(3)(B)(iv)(IV)(bb) and (cc),
(V)(bb) and (cc), and (VI)(cc) and (dd).
60. The Supreme Court has described guilt by association as "alien to the traditions of a free
society and the First Amendment itself." NAACP v. Claiborne Hardware Co., 458 U.S.
886, 932 (1982). See also Healy v. James, 408 U.S. 169, 186 (1972).
61. USA PATRIOT Act § 411(a) amended 8 U.S.C. §1182(a)(3)(B)(vi)(I) to include as a
"terrorist organization" any foreign organization so designated by the Secretary of State
under 8 U.S.C. § 1189, a provision that was introduced in the Antiterrorism and Effective
Death Penalty Act of 1996. As of October 5, 2001, 26 organizations had been designated
as foreign terrorist organizations under 8 U.S.C. § 1189. See 66 Federal Register 51088-
90 (Oct. 5, 2001). In order to qualify as a designated "foreign terrorist organization" under
8 U.S.C. §1182(a)(3)(B)(vi)(I), the Secretary of State must find that "(A) the organization
is a foreign organization; (B) the organization engages in terrorist activity; and (C) the
terrorist activity of the organization threatens the security of United States nationals or the
national security of the United States." See 8 U.S.C. § 1189(a)(1)(A)-(C).
In addition, USA PATRIOT Act § 411(a) amended 8 U.S.C. §1182(a)(3)(B)(vi)(II) to
include as a "terrorist organization" any domestic or foreign organization so designated
by the Secretary of State in consultation with or upon the request of the Attorney General
under Section 411. On December 5, 2001, the Secretary of State, in consultation with the
Attorney General, designated 39 groups as Terrorist Exclusion List organizations under
this provision. See 66 Federal Register 63619-63620 (Dec. 7, 2001). In order to qualify
as a designated "terrorist organization" under 8 U.S.C. §1182(a)(3)(B)(vi)(II), a "finding"
must be made that the organization engages in one or more of the "terrorist activities"
described in 8 U.S.C. § 1182(a)(3)(B)(iv)(I)-(III). These activities consist of: (1)
"commit[ting] or incit[ing] to commit, under circumstances indicating an intention to cause
death or serious bodily injury, a terrorist activity;" (2) "prepar[ing] or plan[ning] a terrorist
activity;" and (3) "gather[ing] information on potential targets for terrorist activity." See 8
U.S.C. § 1182(a)(3)(B)(iv)(I)-(III).
62. USA PATRIOT Act § 411(a), amending 8 U.S.C. §1182(a)(3)(B)(vi)(III). In order to qualify
as an undesignated "terrorist organization" under 8 U.S.C. §1182(a)(3)(B)(vi)(III), "a
group of two or more individuals, whether organized or not," must engage in one or more
of the "terrorist activities" described in 8 U.S.C. § 1182(a)(3)(B)(iv)(I)-(III). See supra Note
59.63. USA PATRIOT Act § 411(a), amending 8 U.S.C. § 1182(a)(3)(B)(iv)(IV)(cc), (V)(cc), and
(VI)(dd).
64. USA PATRIOT Act § 411(c)(3)(A) and (B).
65. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a).
66. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a)(3) and (5).
67. See, e.g., Terry v. Ohio, 392 U.S. 1, 20-22 (1968).
68. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a)(2).
69. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a)(7).
70. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(b)(1) and (2)(A)(iii) and (iv).
71. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).
72. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a)(2).
73. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(a)(6).
74. USA PATRIOT Act § 412(a), adding 8 U.S.C. § 1226A(b)(1).
75. See Zadvydas v. Davis, 121 S.Ct. 2491, 2500 (2001).
76. While the USA PATRIOT Act does not explicitly authorize the use of secret evidence in
immigration proceedings, its provisions are certain to encourage its use. Since 1996, the
INA has explicitly provided for the use of such evidence in removal proceedings before
the Alien Terrorist Removal Court. See 8 U.S.C. § 1531 et seq. In addition, the INS has
long taken the position that it is authorized to use secret evidence in bond proceedings.
See, e.g., Al Najjar v. Reno, 97 F.Supp.2d 1329 (S.D.Fl. 2000); Kiareldeen v. Reno, 71
F.Supp.2d 402 (D.N.J. 1999).
77. See Debs. v. United States, 249 U.S. 211 (1919).
78. See Korematsu v. United States, 323 U.S. 214 (1944).
79. Linda Greenhouse, "In New York Visit, O'Connor Foresees Limits on Freedom," The New
York Times, Sept. 29, 2001, at B5. 323 U.S. 214 (1944).