Terrorism in the Land of the Free

Repression and Incarceration in the Name of National Security

Nasser K. Ahmed was arrested in April 1996 and held in jail with extended periods in solitary confinement for more than three and a half years. Since he was not serving a sentence for a specific crime, his jail term could have been endless. The government claimed he was associated with a terrorist organization but kept its evidence secret, showing it only to the presiding judge at hearings from which both Ahmed and his lawyer were excluded.

Ahmed doesn't live in Afghanistan or Iran or a country without civil liberties. He was a prisoner in the United States and his case was not an exception. He is one of two dozen Arabs the Immigration and Naturalization Service has arrested since 1996 and is trying to deport using secret information.

Using the INS to police and repress political activity among immigrants isn't new. Today the INS targets people from Arab or Muslim countries, claiming they are terrorists. In the past the same techniques were used by government against anarchists, communists, and labor activists from Europe. According to David Caute's The Great Fear, the United States deported about 900 politically active immigrants to Europe from 1917 to 1921. During the "red scare" after World War II, the United States deported 163 people it claimed were communists. At the same time, about twice that number were arrested and spent years of their lives defending themselves against government deportation attempts.

When the Cold War ended, the United States might have moved away from this ugly heritage. Instead, as James Dempsey and David Cole discuss in their 1999 First Amendment Foundation book, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, the U.S. government's repressive machinery merely found new targets--Arab and Muslim immigrants like Ahmed. Dempsey and Cole focus on the bad and very scary Antiterrorism and Effective Death Penalty Act of 1996, legislated by Congress and President Bill Clinton in the hysteria wrought by the World Trade Center and Oklahoma City bombings. The law rejects and repudiates the best parts of American legal tradition.

First, the law punishes people for their ideas rather than their actions and restricts people's rights to free association. In foreign affairs, it instructs the State Department to return to its Cold War practice--ended in 1990--of refusing visas to people with unpopular political opinions. Similarly, the INS now must deport non-citizen residents if they have the wrong opinions. In domestic affairs, the law repealed the FBI First Amendment Protection Act, which was enacted in 1994 to restrict the FBI to investigating groups and individuals only for criminal acts. Now the FBI can investigate a group because it advocates nonconformist ideas.

Second, the law uses guilt by association. If the State Department labels a group as terrorist then all of its members and supporters, even if they were never involved in any act of violence, can be excluded or deported from the United States. Citizens are prohibited from giving material support--even for nonviolent, humanitarian, social welfare programs--to groups on the State Department's list. Dempsey and Cole point out that, under the 1996 act, giving money to the African National Congress during Nelson Mandela's speaking tours in the United States after his release from prison would have been a crime because the State Department listed the ANC as a terrorist organization at the time.

Third, the act takes away from immigrants their rights to a fair trial and to confront their accusers. It allows the INS to arrest and deport immigrants and alien residents of the United States without due process of law--without showing them the information against them or telling them the source of that information. The U.S. Attorney-General can invoke national security to hide the identity of informers supplying information against immigrants. Also, the government can use evidence even if it was collected using unconstitutional or illegal methods.

Fourth, the law removes the presumption of innocence. It requires the INS to immediately arrest anyone it suspects is associated with a terrorist group. Those arrested can be kept in prison without bail. Most noncitizens can't challenge their arrest. Only legal resident aliens can challenge their arrest in court, but the burden of proof is on them rather than on the government. This burden is especially hard since the government can use secret information against the aliens that neither they nor their lawyers have access to.

Fifth, punishment is unfair. The Attorney-General can deport an alien to any country at all, including a nation in which the deportee may be in danger. If no country will accept the deportee, the Attorney-General can keep that person in prison for an indeterminate amount of time.

Finally, the act is arbitrary. Terrorism is whatever the Secretary of State decides threatens "the security of the United States nationals or the national security of the United States." These designations can change as U.S. foreign policy objectives alter, rather than because a group has changed. In 1994 the Clinton administration opposed designating Hamas as a terrorist group but by 1997 the Secretary of State was including the same Hamas among the terrorist groups under the 1996 law. Such groups have little power to fight the designation. In court hearings they cannot introduce their own evidence; they can only use the State Department's evidence. Also, the Secretary of State can use secret evidence and not even reveal it in court.

Nasser Ahmed was lucky--or as lucky as a person who spent more than three and a half years in jail without being charged with a crime can be. Eventually, in July 1999, Donn Livingston, an immigration court judge, ruled that Ahmed should be freed. The judge criticized both the FBI and the INS because much of the information they claimed was secret could have been obtained from public sources and because the agencies often refused to explain to him why the information was classified as secret.

The government fought to keep Ahmed in jail and to keep parts of Judge Livingston's decision secret. Only after four more months of legal maneuvering was Ahmed released in November 1999, along with declassified parts of the secret appendix to Judge Livingston's decision. In it the judge criticized the government for relying on "double or triple hearsay" and for relying on information that the Egyptian government may have supplied to help destroy its political opposition. The declassified appendix also revealed that the FBI was opposing Ahmed's release because "his prominence in the community will increase if he is released.... He would be more well known, lending to his credibility in the community both inside the United States and outside the United States."

Nasser Ahmed's story is part of the continuing efforts by certain agencies and people in the United States who believe that government should protect us from our own ideas. If we don't stop such agencies and individuals now, many more Nasser Ahmeds will be imprisoned or deported.

Burton Levine is a writer living in Hamden, Connecticut, who often writes about spies, secrecy, and deception in American life.

COPYRIGHT 2001 American Humanist Association
COPYRIGHT 2001 Gale Group