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Secret tribunal.

On March 12 when President Bush unveiled his domestic crime bill, he urged Congress to enact the measure as a way of welcoming home the soldiers who fought in the gulf. The crime bill's provisions for deporting foreign "terrorists" do parallel some aspects of Operation Desert Storm, but not ones Bush would like to acknowledge. Just as the Administration kept the press from observing its military effort in the Middle East, it now proposes secrecy in proceedings to expel immigrants from this country. And in both initiatives, while the Administration talks of the need to punish heinous crimes, the main victims of its actions are not criminals but foreign citizens with the wrong political allegiances.

Under the Bush crime bill, the government could decline to reveal publicly any evidence it deems confidential and which it seeks to use to deport a foreign citizen for "terrorist activity." Moreover, it can conceal the evidence not only from the public but from the foreign citizens themselves, thereby depriving them of any chance to defend themselves.

Some might consider such drastic action warranted to respond to terrorist threats. But the right to due process of law does not turn on the gravity of the government's accusations; we give as much if not more procedural protection to those charged with serial murders or treason as to those charged with income tax evasion.

More disturbing is the government's sweeping interpretation of the word "terrorism." To the Immigration and Naturalization Service, "terrorist activity" includes not only setting a bomb but also fundraising or recruiting members for any organization or government body that has engaged in unlawful violent activity. Thus the definition turns not on what a person has done but with whom he or she has associated. Obviously this treads on First Amendment rights of association. In a secret trial, who is to know if the government's "evidence" consists of illegal acts or constitutionally protected associations?

The government's definition of "terrorist activity" is so broad that, if consistently applied, it would cover all foreign citizens who have raised funds for the African National Congress, the government of Israel, the Irish Republican Army or the Kurdish rebels in Iraq. Of course, the "terrorism" label is not applied consistently. Those who use violence to achieve ends consistent with Administration policy are "freedom fighters." The likelihood of selective enforcement underscores the injustice of deportation trials held in secret.

The government would no doubt find the secrecy provisions convenient. For the past four years, it has been attempting to deport seven Palestinians and a Kenyan who, it alleges, are associated with a "terrorist" organization, the Popular Front for the Liberation of Palestine (P.F.L.P.) [see Eve Pell, "Kicking Out Palestinians:' February 5, 1990). The F.B.I. investigated the eight for three years and concluded, according to then-F.B.I. Director William Webster, that none of them had engaged in any criminal activity, much less terrorism. Nevertheless the I.N.S. arrested the eight at gunpoint and seeks deportation for their alleged support of a terrorist group, claiming to have "confidential" information that supports its charges. Under the new crime bill, the I.N.S. could summarily deport these people without ever revealing what, if anything, it has against them.

In another case, the I.N.S., has been trying without success to expand a little-used provision in the existing immigration laws to do what President Bush's crime bill would do explicitly-authorize secret trials. Existing law allows the I.N.S. to use undisclosed information to keep foreign citizens out of the country if disclosure of the information would be "prejudicial to the public interest!' Previously this law has been used only against those who have not yet entered the country and thus are held to have no constitutional rights. Now the I.N.S. is attempting to use it against Fouad Rafeedie, a Palestinian-born permanent resident who has lived here peacefully for fifteen years. The government claims he belongs to the P.F.L.P. and that in 1986 he attended a P.L.O.-connected youth conference in Syria. Two federal courts have preliminarily enjoined the proceeding on the ground that it would deny Rafeedie his due process right to a public trial.

The terrorism provisions in the crime bill would hide such government actions from the public. As President Bush proved in the Persian Gulf, enforced secrecy can avoid much embarrassment. But as the Framers of our Constitution recognized long ago, and as we were all recently reminded by the videotape of Los Angeles cops beating a suspect, the fight of public scrutiny is crucial to keeping government power in check. The new domestic order should not sanction a return to the seventeenth-century Star Chamber.

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Title Annotation:crime bill, terrorism and US foreign citizens
Author:Cole, David
Publication:The Nation
Article Type:editorial
Date:May 6, 1991
Previous Article:The wrong map.
Next Article:Minority report.

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