Fordham Urban Law Journal
Michael A. Cooper 0
yNew York City Campaign Finance Board 0
0 1. See , e.g., Adam Clymer, From High to Low, Hopefuls for 2000 Are Awash in Funds, N.Y
Association of the Bar of the City New York
In this transcript, first, Mr. Michael Cooper, President of the Association of the Bar of the
City of New York offers welcoming remarks to the conference, describing briefly the work of
the Association’s and its Special Commission on Campaign Finance Reform and the focus of the
conference, specifically what can be done in the field of federal campaign finance reform based on
what has been done at the state and local levels. Second, chair of the Campaign Finance Board,
Father O’Hare, addressed the conference focusing on the non-partisan Board of the Campaign
Finance Program in New York City as a model for overcoming the impediment to federal reform,
that lawmakers view the problem in partisan terms. Father O’Hare elaborated on the purpose of
the conference, briefly described new amendments to the New York City Program, an overview
of the conference’s programs and speakers, and finally, a brief introduction for the first speaker,
Mr. Fritz Schwarz. This transcript was taken at From the Ground Up: Local Lessons for National
Reform, a national conference on campaign finance reform held on November
by the New York City Campaign Finance Board and the Association of the Bar of the City of New
MICHAEL A. COOPER
Association of the Bar of the City of New York
NICOLE A. GORDON
New York City CampaignFinanceBoard
A Conference Sponsored by the New York
Campaign Finance Board
and the Association of the Bar of the
City of New York
Dep. Bur. Chief Wash., D.C.,
New York Times
L.A. City Ethics Committee
New York City Campaign
The National Review
MICHAEL A. COOPER
Association of the Bar of the
City of New York
United States Representative,
JOHN D. FEERICK
School of Law
Editorial Board Member,
The Wall Street Journal
LIST OF PARTICIPANTS
New York Civil Liberties Union
NICOLE A. GORDON
New York City Campaign
New York City Campaign
The City of New York
Skadden, Arps, Slate, Meagher
& Flom LLP
FRED HERRMANN, Ph.D.
New Jersey Election Law
HAROLD M. ICKES
The Ickes & Enright Group
Wisconsin Election Board
EDWARD I. KOCH
The City of New York
Center for Responsive Politics
LAWRENCE M. NOBLE
Federal Election Commission
JOSEPH A. O'HARE. S.J.
New York City Campaign
Wiley, Rein & Fielding
Cravath, Swaine & Moore
United States Representative,
Center for Governmental Studies
Alliance for Better Campaigns
FROM THE GROUND UP:
LOCAL LESSONS FOR
A Conference Sponsored by the New York City
Campaign Finance Board
and the Association of the Bar of the
City of New York*
TABLE OF CONTENTS
Nicole A. Gordon
Is "SUNLIGHT" ENOUGH? THE LIMITATIONS OF
D ISCLOSURE ...........................................
John D. Feerick (Moderator)
POLICING THE POLITICIANS: MODELS FOR EFFECTIVE
Nicole A. Gordon (Moderator)
Lawrence M. Noble
As this issue of the Fordham Urban Law Journal goes to press,
campaign finance reform at the federal level has emerged as a core
campaign issue for former Senator Bill Bradley and Senator John
McCain as they seek the Democratic and Republican nominations
for president. In fact, the front page of the "newspaper of record"
frequently carries stories that describe campaign finance scandals.'
The issue of campaign finance reform has occupied an
increasingly dominant place in American politics. Campaign finance
reform legislation has languished at the federal level while states and
cities have enacted various laws intended to curtail the pernicious
effects of large political contributions and, in some jurisdictions, to
alleviate the demand for these contributions by providing public
funds to candidates. Nationwide, for example, more than thirty
jurisdictions now have some program for providing public funds for
political campaigns.2 These field experiments in campaign finance
reform are invaluable sources of information and experience for
reformers and legislators who grapple with the complex issues of
This information and experience, however, has been largely
ignored by those who have discussed campaign finance reform at the
federal level. Indeed, numerous well-intentioned proposals to
change the system, ranging from modest attempts to curtail the use
and flow of "soft money," to more far-reaching plans to require
one hundred percent public funding of campaigns, have often
lacked reference to the reform programs in the United States that
have enjoyed records of genuine success in the effort to control the
role of money in politics.
Accordingly, this issue of the Fordham Urban Law Journal
presents the proceedings of a national conference on campaign
finance reform held on November
, and jointly sponsored by
the New York City Campaign Finance Board (the "Board") and
the Association of the Bar of the City of New York (the
"Association"). Entitled From the Ground Up: Local Lessons for National
Reform, the conference brought together practitioners of the field,
including a diverse group of journalists, elected officials and local
and national government administrators, to discuss what lessons
could be learned from nearly twenty-five years of local campaign
reform efforts. It attracted an audience from around the country
and was rebroadcast several times on C-SPAN. This conference
and the resulting materials, such as this publication, represent an
effort to bring knowledge gained from local experiments to the
attention of those involved in reform at the federal level.
The New York City Campaign Finance Program (the
"Program") is itself one such experiment. In 1988, then-Mayor Edward
I. Koch and City Council Majority Leader (and current Speaker)
Peter F. Vallone enacted New York City's first-ever program of
public financing. This comprehensive Program, known as the New
York City Campaign Finance Act, 3 regulates campaigns for
candidates for the offices of Mayor, Public Advocate, Comptroller,
Borough President and City Council member. Candidates who join
the voluntary Program agree to limit their contributions and
spending and provide detailed disclosure of their campaign finances. In
return, they can qualify to receive public matching funds for small
contributions from New York City residents.4
The Program has benefitted from continual refinement by the
legislature, guided by the Board's mandated post-election reports
that evaluate the effects of the Program and make
recommendations for reform.' Since 1988, there have been numerous
amendments to the Program,6 including: (1) the imposition of a debate
requirement for candidates for citywide office;7 (2) further
lowering the contribution limits for each office;8 (3) changing the
matching formula for contributions from one-to-one in public funds for
contributions of up to one thousand dollars to four-to-one in public
3. N.Y.C. ADMIN. CODE tit. 3, §§ 701-7
); N.Y.C. CHARTER ch. 46,
§§ 1051-57 (N.Y. Legal Pub. Corp. 198
9 & Supp. 1998
4. See N.Y.C. ADMIN. CODE tit. 3, §§ 701-715.
5. See N.Y.C. CAMPAIGN FINANCE BD., A DECADE OF REFORM, 1988-1998
; N.Y.C. CAMPAIGN FINANCE BD., ON THE ROAD TO REFORM:
CAMPAIGN FINANCE IN THE 1993 NEW YORK CITY ELECTIONS (Sept. 1994); N.Y.C.
CAMPAIGN FINANCE BD., WINDOWS OF OPPORTUNITY: CAMPAIGN FINANCE REFORM
AND THE NEW CITY COUNCIL (July 1992); N.Y.C. CAMPAIGN FINANCE BD., DOLLARS
AND DISCLOSURE: CAMPAIGN FINANCE REFORM IN NEW YORK CITY (Sept. 1990).
6. See N.Y.C. ADMIN. CODE tit. 3, §§ 701-715.
7. See id. § 709.5.
8. See id. §§ 703, 705.
funds for contributions of up to $250;9 (4)"banning corporate
contributions for candidates in the Program;' 0 and (5) subjecting
transition and inaugural fundraising committees to the same
contribution limits and disclosure requirements as those for
Preliminary analysis by the Board of admittedly limited data
from three City Council special elections held in February 1999
suggests that the new matching formula will have a dramatic effect
on the way campaigns are conducted under the Program. For the
first time ever, public funds made up the majority of funds
available to candidates in the February 1999 elections; the average
contribution size dropped by twenty percent from elections in 1997;
more contributors gave to campaigns than in 1997; and candidates
raised the vast majority of their funds from New York City
residents.12 These results, and the respect accorded to the Program
over the past eleven years, testify to the vitality of campaign
finance reform at the local level.' 3
As noted by the conference's first speaker, former New York
City Corporation Counsel and Charter Revision Commission
Chairman Fritz Schwarz, the framers of the Constitution
envisioned the states as "workshops of liberty," where experimentation
and diversity could flourish, providing valuable lessons for the
federal government.' 4 Unlike many discussions of campaign finance
reform at the federal level, the focus of From the Ground Up was
not on what might happen if reform were to be enacted, but on
mining the lessons of local experiments to identify those reforms
that could be imported to the federal level.
The timeliness of the conference was underscored not only by
nearly daily press coverage of scandal, but also by the forced
withdrawal of one featured speaker. Charles G. La Bella, then-U.S.
Attorney for the Southern District of California and former Chief
of the Justice Department's campaign finance task force, had
accepted an invitation to address the conference on the challenges of
law enforcement in the political arena. Mr. La Bella had
investigated allegations of scandal arising from the 1996 presidential
campaign. He recommended that Attorney General Janet Reno
appoint an independent counsel under the Independent Counsel
Statute to investigate further.'5 The Attorney General declined to
make such an appointment.' 6 Despite Mr. La Bella's stated
intention to confine his remarks to "the law and published court
decisions," he was directed by the Justice Department not to
participate in the conference. 17 Although the Justice Department
maintained that its direction to Mr. La Bella not to participate was
not unusual, some observers suggested that the decision was a
consequence of his recommendation of an independent counsel.' 8 This
occurred at a time when unrelated scandals were being investigated
by Independent Counsel Kenneth Starr (resulting later in the
adoption of two counts of impeachment against President Clinton).
From the Ground Up: Local Lessons for National Reform
should be considered the beginning, and not by any means the end,
of an examination of data and experience to assist the public in
evaluation of federal reform legislation. In particular, materials
created as part of the conference, including this transcript, will help
to inform the work of the Association's Special Commission on
Campaign Finance Reform, co-chaired by Robert M. Kaufman of
Proskauer Rose LLP, Fordham Law School Dean John D. Feerick
and former Secretary of State Cyrus Vance, as that Commission
prepares a comprehensive report on recommendations for national
We hope that the transcript of this conference will help to inform
many others of the practical potential and the impediments to
campaign finance reform at the federal level.
Thanks are due to the New York Community Trust and the Joyce
Foundation, both of which provided grants for the conference.
Thanks are also due to Carole Campolo, Deputy Executive
Director; Ian Michaels, Press Secretary; and Christopher Odell, Deputy
Press Secretary of the Board staff for their extraordinary work in
putting this conference together. Thanks are similarly due to the
Association, Alan Rothstein, General Counsel; Nick Marricco,
Meeting Services Director; and Kristen Ruckdeschel, Public
MR. COOPER: My name is Michael Cooper. I am the
president of the Association of the Bar of the City of New York (the
"Association") and it is my pleasure to welcome you this morning
to this very important conference. It is fitting that a gathering on a
subject so basic to the fabric of our government as campaign
finance reform should be held in this institution.
This Association was founded in 1870 to combat the corruption
in the city government, particularly in the courts, at that time and,
ever since its founding in 1870, this Association has been dedicated
to furthering government reform. All of us who care about fair and
responsive government have to be concerned with the abuses that
have been rampant in the financing of election campaigns. And
what a perfect moment in time to hold this conference. For we are
less than a week from elections in which millions of dollars were
spent and in the case of the Senatorial contest in the State of New
York, more than ten million dollars by each candidate.
There have been many conferences that have railed against the
excesses of money and politics. But today, this conference has a
different focus. A focus on what can be done and what has been
done to accomplish campaign finance reform. Around the country,
state and local governments have been putting into place systems
designed to level the playing field for candidates, to curb the undue
influence of money in government and to provide greater
regulation and disclosure of campaign financing.
One of the best examples is right here in the City of New York.
The New York City Campaign Finance Act, 19 passed a decade ago,
is a national model. And the Campaign Finance Board (the
"Board") has been an outstanding example of a dedicated and
effective public agency.
I am proud to have the opportunity to have the Association
cosponsor this program with the Board, and I thank Father O'Hare,
the chair of the Board, and executive director Nicole Gordon and
the Board's fine staff for their efforts in putting this program
To give you some idea of the regard that this Association has for
Nicole Gordon, she served until this past spring as a member of our
19. See N.Y.C. ADMIN. CODE tit. 3, §§ 701-7
); 52 R.C.N.Y. § 1-02 (1998)
(providing for the establishment of the Campaign Finance Board).
Executive Committee, and is now chair of the Government Ethics
Committee of the Association.
Today's conference is part of the ongoing work of the Special
Commission on Campaign Finance Reform of this Association.
That commission, which is chaired by three former presidents of
the Association, Cyrus Vance, Bob Kaufman and John Feerick, is
developing a comprehensive approach to campaign finance reform
at the federal level. The commission plans to finish its report
sometime next year and its work will be greatly informed by
We are quite fortunate to have assembled an excellent array of
speakers from different levels of government and varied
experiences and points of view. I hope you find the presentations and
the exchange of views to be informative and thought-provoking,
and that you will value highly your attendance at this conference
when you think of it in the future.
Now let me turn this over to Father O'Hare.
FATHER O'HARE: Thank you very much, Mr. Cooper. The
Board is, of course, very pleased that the Association joins us today
in sponsoring what we think will be a very useful and constructive
I want to thank all of you for coming today. Represented in the
room, we have people from across the nation, from many of the
states and even from Canada. As Michael Cooper suggested, the
theme of today's conference is to see if we can look at programs
that actually have worked on the municipal and state level and,
with that modesty that is characteristic of New York, see if it is
possible that some of the lessons on the local and municipal level
could actually be pertinent to the problems at the national and
As we have seen from watching the debate about our campaign
finance system on the federal level, even the most heroic reform
efforts have little chance of success as long as law makers continue
to see the campaign finance crisis in partisan terms.
We believe that one of the wise features created by the architects
of the Campaign Finance Program here in New York City was the
provision in the law for a non-partisan Board, and over the last ten
years, I think, we have been successful in developing a
non-partisan culture on that Board. In contrast to that approach are
election commissions that are bi-partisan in nature, which seems often
to be a prescription for paralysis.
Despite the famous Clinton-Gingrich handshake, no real
progress has been made at the federal level on the issue of campaign
finance'reform and the resolution of this issue is crucial to a fair
decision-making process on every other subject that comes before
Later today we will hear from at least two political figures, Ed
Koch, former Mayor of New York and now National Voice of
Reason, and Congressman Christopher Shays, who have in their
careers managed to look beyond the trenches of partisan politics.
One of the signature trends of the 1990s has been the increased
prominence of states and cities in formulating new ideas about
governance. From reducing crime to reforming welfare and public
education, states and cities have discovered through their
experimentation innovative solutions to the problems that have
bedeviled the national government. But while both Democrats and
Republicans have publicly embraced the idea of looking beyond
the Beltway for answers to national problems, little attention has
been given thus far to local innovations in campaign finance
Today's conference is part of an effort to address that situation.
Today we will hear from, among others, administrators of local and
state campaign finance reform programs, as well as from elected
officials and professionals who have run campaigns under these
In political campaigns, pundits sometimes speak of momentum.
If there is any hope for campaign reform at the national level, it
will need to capture the same sense of movement that propels a
candidate to victory. In last week's elections, momentum certainly
seemed to be on the side of reform. Voters in Arizona,
Massachusetts and New York City all approved campaign finance reform
proposals. In Wisconsin, Senator Russell Feingold proved that a
candidate can take a tremendous risk, restrict his fundraising and
spending, and still win despite a massive influx of funds from out of
Earlier this year, the New York City Council approved
amendments that will dramatically improve our city's Program, including
a provision for a four-to-one rate for public funds to match smaller
contributions from city residents. With the victory of the
ShaysMeehan bill2" in August, these signs indicate that voters are
inter20. See H.R. 2183, 105th Cong. (1998). It was passed on August 6, 1998 by a vote
of 252-179. The companion Senate version, the "McCain-Feingold bill," S. 1219,
ested in reform, notwithstanding the conventional political wisdom
to the contrary.
The purpose of today's conference, once again, is to look at the
experience of local campaign finance reform efforts and to identify
those reforms that could be translated to the federal level. Today
we will have four panel discussions. At the conclusion of each of
these panel discussions, the moderators will ask the panelists what,
if any, consensus they can reach on reforms that can work at the
federal level. And in organizing the conference and inviting people
to participate on the panels, we have tried to enlist as wide a
spectrum of opinions on these issues as possible.
We have four panel discussions and three featured speakers. We
certainly anticipate having time for questions from the audience
after each panel and each speaker, but we have a considerable
number of issues to address today and we will have to adhere
strictly to our time limits.
Before introducing the first speaker of the day, I would like to
thank, once again, our co-sponsor, the Association, and also the
New York Community Trust and the Joyce Foundation, whose
generous support has made this conference possible.
I would also like to thank my colleagues on the Board, Bill
Green and Martin Begun, both of whom are here, as well as Nicole
Gordon, the executive director who has enlisted over the last ten
years an extraordinary group of dedicated and competent public
servants on the staff of the Board.
Our first speaker today is Fritz Schwarz who served as New York
City Corporation Counsel in the Koch administration, and then as
chair of the Charter Revision Commission in 1989. In that
capacity, he helped recast the structure of New York City government.
He has also served in a number of other public service positions,
including as chief counsel to Senator Frank Church's 1975 Select
Committee on Intelligence Activities.
104th Cong. (1996), failed to override a Republican filibuster. See S. 25, 105th Cong.
OPENING REMARKS: THE STATES AND CITIES AS
FEDERAL LABORATORIES OF DEMOCRACY*
MR. SCHWARZ: Thank you, Father, thank you Nicole, thank
you, Michael. I am indebted to Justice Brandeis for the title. It
was he who dissented to the 1932 case of New State Ice Co. v.
Liebmann,21 charged his fellow justices with stymieing the potential
progress of the nation by striking down Oklahoma's licensing
requirement for sellers of ice. Defending the right of state
governments to tailor legislation to local needs, Brandeis opined: "it is
one of the happy incidents of the federal system that a single
courageous state," or, we would add, city, "may, if its citizens choose,
serve as a laboratory; and try novel social, and economic
experiments without risk to the rest the country, '22 and, we should add,
with potential benefit to the rest of the country.
Just such a happy experiment is the New York City Campaign
Finance Act (the "Act"). 23 Passed in the wake of grim findings by
the Sovern Commission on Integrity in Government of vast
opportunities for abuse, influence peddling and other improprieties, the
law has, as Mayor Koch predicted in signing it, "achieved a more
equitable and open system of financing candidates who seek
elective office in New York City."24
With its sensitivity to New York's unique concentration of
wealth and power, its increased accountability to the people
through disclosure and its creative voluntary incentive-creating
structure of participation, the Act embodies the best spirit of local
* For a revised version of these remarks, see Frederick A.O. Schwarz, Jr., States
and Cities as Laboratoriesof Democracy, 54 REc. Ass'N B. N.Y.C. 157-65 (Mar./Apr.
21. 285 U.S. 262 (1932). Specifically, Justice Brandeis stated:
To stay experimentation in things social and economic is a grave
responsibility. Denial of the right to experiment may be fraught with serious
consequences to the Nation. It is one of the happy incidents of the federal system
that a single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to the rest
of the country.
Id. at 311 (Brandeis, J., dissenting).
23. See supra note 3.
24. Hearing on Local Law No. 8 of 1988 (Feb. 29, 1988) (statement of then-Mayor
Edward I. Koch), cited in Jeffrey D. Friedlander et al., The New York City Campaign
Finance Act, 16 HOFSTRA L. REV. 345, 345 n.2 (1988).
In keeping with Justice Brandeis's wise assessment of the utility
of state experimentation, New York City's success has led the way
for reform in other localities - as it hopefully will do in the nation,
Later panels today will examine the valuable lessons of our city's
law in depth. My project, by contrast, as the day's opening
speaker, is to give a more general overview of the role of state and
local governments in inspiring widespread change.
The purpose of my remarks today is first to trace some of the
substantial and invaluable contributions of states and cities to
national policy throughout American history starting from the very
beginning and into the present day.
I recognize the critical part states historically have played, and
continue to play, in pioneering institutional process reforms - for
example, state constitutional amendments or campaign financing
- as well as their invaluable role as pioneers of substantive, social
or economic changes. Next, I examine some of the benefits of
using localities as a proving ground for social experiments.
Finally, I raise the question of how such experimentation relates
to the values of federalism, generally, and, in particular, how this
experimentation relates to the place of minority interests.
I should begin my historical survey by noting that the critical
importance of state innovation to the well-being of the federation
was, of course, by no means a novel concept when Brandeis spoke
De Tocqueville, an incredibly perceptive observer on this as on
many other subjects, observed a century earlier that, in large
centralized nations, the law-giver is bound to give the laws a uniform
character which does not fit the diversity of places and of mores.26
In keeping with de Tocqueville's call for diversity, the history of
American federal law in every era has reflected the adoption of the
best - and occasionally the worst - of experiments first
implemented in the laboratory of the states.
From the Federal Constitution itself, to the victims' rights and
environmental reforms of recent decades, the federal government
frequently has followed in the footsteps of trailblazing states and
The laboratory model was much in evidence when the Federal
Constitution was drafted, as the founders availed themselves of the
25. See New State Ice Co., 285 U.S. at 311.
26. See ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (George Lawrence
trans., J.P. Mayer ed., 1988).
constitutions of the original states. In fact, the constitution of our
own state was particularly influential as a model for the Federal
Alexander Hamilton proudly pointed to the New York
Constitution in his FederalistNo. 1, where he assured New Yorkers, in
seeking their support, that the new Federal Constitution was "an
analogy to [our] own state constitution. '27
In the area of substantive rights, it is the states to whom the
nation owes many of those rights that define what it is to be an
American in our Bill of Rights. Free exercise of religion, restrictions on
search and seizure, quartering of troops, freedom of the press and
safeguards against cruel and unusual punishment appeared in state
constitutions before their enactment in our national Bill of Rights.
Many states, particularly Massachusetts, Virginia and New York,
consider these rights so critical that only the promise of
amendment procured ratification of a Constitution without the Bill of
Rights. The early years of the American confederation witnessed
legislative state experiments, both for the good and for the terrible.
The legislature of Pennsylvania outlawed slavery in 1780 and our
own state followed suit in 1799.
Unlike many other states, as early as 1783, Massachusetts
interpreted its constitution's guaranty that all men are born free and
equal to require the abolition of slavery.
By 1804, the last northern state had freed its slaves. And until
the passage of the regressive Federal Fugitive Slave Act in 1850,28
these same states further enacted new personal liberty laws to
enforce the rights of fleeing slaves.
During the last three decades of the 19th century, after the
federal civil rights law had been declared invalid, virtually every
northern state, as well as a number of western states, prohibited
school segregation by statute. And state courts, when called upon,
enforced those statutes by requiring school integration, to some
extent, at least.
Surely, the record on civil rights in the northern states was
hardly perfect, but at least it showed that one could have liberty in
states and that that worked and it was something to praise and
follow and not something to decry. Of course, the story was different
in the south, with a terrible cost to the union. As the northern
states had led the fight in expanding rights for people of color, state
27. THE FEDERALIST No. 1, at 6 (Alexander Hamilton).
28. 9 Stat. 462 (Sept. 18, 1850).
legislatures, especially in the west and the north, set an example in
according women the vote.
Wyoming, for example, enacted women's suffrage in 1869, and
twenty-four states already had followed when the Nineteenth
Amendment passed in 1920. So, again, you have an example of
how state allowance of greater freedom led the way and served as
an example for the national government.
In the following decades, the states continued to change the
landscape of American rights. For example, New York passed the
nation's first worker's compensation law in 1910, and other states
soon followed. Massachusetts enacted the first minimum wage
legislation in 1912. Thirteen states had enacted minimum wage
programs by the 1920s, whereas Congress did not follow suit until the
New Deal under Roosevelt.
However, during the early decades of the twentieth century, the
Supreme Court's application of the now discredited doctrines of
substantive due process and freedom of contract struck down
hundreds of progressive state laws involving minimum wages and
maximum hours. The best-known case, of course, was Lochner v. New
York 29 in 1905.
The frustration of state experimentation that began in the 1930s
took on a new dimension in 1942 with Supreme Court decisions
vastly expanding the preemptive power of federal legislation.
During the New Deal and the Truman, Eisenhower, Kennedy
and Johnson administrations, our national attention was focused on
national programs, opening doors to social security,. urban housing,
education, voting and other civil rights. And during that period,
the states did not do as much by way of experimentation, but they
continued in the area of rights. And again, New York City led the
way. New York City led the way on housing discrimination by
passing the first law governing discrimination in public housing in
the late 1930s. This law was constantly expanded in New York City
to cover all kinds of housing by 1951.
Similarly, in 1957, though the New York City Council was
generally derided in those days and not as effective as it is today, it
passed the first law in the nation prohibiting discrimination in
privately owned housing that did not receive public subsidies or tax
29. 198 U.S. 45 (1905) (holding a New York statute establishing maximum hours
for bakery employees unconstitutional).
At the same time came the southern defiance of Brown v. Board
of Education3." Again our attention on the issue of rights was
focused quite properly on the reforms which, eventually, after the
pressure that came from Martin Luther King, Jr. and other people
defying segregation, nationalized the rights of people of color not
to be discriminated against. But today, there is again a resurgence
of reform in states and localities. The importance of state
innovation has come to manifest itself increasingly in recent decades.
For example, with regard to vehicle emissions, California led the
way long before the federal statutes on laws that controlled air
pollution. National work on the environment is vital, but as an
editorial in today's New York Times showed, the states and cities are
again beginning to lead the way and pressing for environmental
Again, the states were focusing on fundamental rights as well as
substantive matters in the field of women's rights. Many states
passed constitutional amendments and legislation protecting
women against discrimination before the national government did so.
Still more recently, cities and states, again, particularly New York
City, have been standard bearers in the area of gay rights. In 1986,
New York City passed a landmark gay rights law32 under Mayor
Koch, and this past June the city passed a domestic partners law,33
which leads the way for seeing whether laws of that kind make
sense, work and are fair. As of 1998, ten states and the District of
Columbia have enacted civil rights protections for gay people. Of
course, that issue is one that is being experimented on in both
If you read the newspapers, you can see the experiments that are
seeking to suppress gay rights in some locations and the
experiments that are seeking to protect them in others. So, state and
local experimentation is not always in a great direction, but it often
Similarly, the state courts, since Justice William Brennan's
influential speech on state constitutions and the protections of
individual rights, 34 have done a great deal to protect individual rights even
The emergency powers extend the government's powers of
regulation to the associations and physical residence of Northern
Ireland's inhabitants. The PTA allows the British government to
forbid certain organizations and mete out punishment for
membership in those organizations.86 The PTA additionally permits the
issuance of exclusion orders, removing any individuals if the
Secretary of State "is satisfied that [the] person has been
concerned in the commission, preparation or instigation of acts of
terrorism. "87 Although review of exclusion decisions is available on
the grounds of illegality, irrationality and procedural impropriety,88
such appeals rarely meet with success, ultimately resulting in a
form of internal exile.89
Exclusion orders may result from the consideration of secret
evidence from any of a variety of sources, relegating the accused to a
position of helplessness, never discovering the nature and content
of the allegations made against her.90 The British government
generally resorts to the limited remedy of exclusion when there is
insufficient evidence to procure a conviction against terrorist
suspects. 91 Ironically, some higher profile exclusion cases have
prevented the likes of Gerry Adams 92 from entering Britain to
speak at a conference in the London Parliament.93
History of Terrorism Legislation in the
United States of America
Political threats against the government and people of the
United States have long held a prominent place in the national
consciousness. Legislative attempts to control the "terrorist
threat" 94 date back to the passage of the Alien and Sedition Acts in
1798.95 In the twentieth century, the assassination
America to the fear that foreign political violence would intrude
upon domestic shores.96
While the Alien and Sedition Acts grew
out of the tempestuous political climate of a newborn nation, the
assassination was a concrete action that prompted Theodore
Roosevelt and Congress to create the Immigration Act of 1903.97
The Immigration Act enabled the administration to exclude aliens
based upon their belief or practice of anarchist principles,9 8 a clear
precursor to certain provisions of the AEDPA. 99 The legacy of the
ideological exclusions espoused by the Immigration
Act'0 0 grew
with its re-enactment in 1907, adding polygamy to the list of
forbidden beliefs. 1 1 Both sets of legislation, however, dealt with the
increasingly complex role that the United States played in world
affairs and the new challenges to the authority and stability of the
federal government, opening the door for further evolution in the
American response to terrorism.
Congress endeavored to protect national security while guarding
the civil liberties of the Bill of Rights with the enactment of the
Espionage Act in 1917.102 Spawned by the complex international
environment surrounding World War 1,103 the Espionage Act
broadened its view beyond participation in a conspiracy10 4 to
encompass violent interference with foreign commerce 1 5 and
counterfeiting. 10 6 The Espionage Act was amended with the Sedition
Act of 1918 to additionally criminalize any activity that threatened
the administration in power. 10 7
In 1940, Congress instituted the Smith Act,0 s a revisitation of
the "guilt by association" doctrine espoused in the Immigration
Act of 1903, to discourage membership in certain unpopular
political groups. 10 9 Garbed in language calling to protect the American
people from anarchy and Civil chaos,110 the Smith Act enabled
frightened isolationists to persecute members of the Communist
Party and other similarly-situated individuals who held views
unpopular with politicians."1 Any individual involved in the writing,
publishing or distribution of questionable material risked
deportation or exclusion, with no consideration for the First Amendment
right to free expression that has historically commanded
With the Korean conflict and the beginnings of the Cold War
looming in the minds of Americans, a frenzied "Red Fear"
blossomed into the Internal Security Act of 1950113 and, over President
Truman's veto, 114 the more renowned McCarran-Walter Act. 115
Despite imposing a number of arduous obligations upon aliens," 6
especially Communist party members, 117 the McCarran-Walter Act
survived the constitutional scrutiny of the Supreme Court. 1 8 This
Act, although following the progressive pattern of past legislation,
went further than any preceding laws in the scope of its
exclusionary powers." 9 While it appears that Congress did not pass the
McCarran-Walter Act to guard against what the modern world
conceives as "terrorism," it arose out of a steadily tightening
tradition of removing and monitoring individuals labeled as dangerous
by an increasingly anxious majority.
112. See Gary, supra note 96, at 232. But cf. Scales v. United States, 367 U.S. 203,
275 n.8 (1961) (Douglas, J., dissenting) ("[T]he lovers of freedom cannot afford to
sacrifice their moral superiority by adopting totalitarian methods in order to create a
self-deluding sense of security. Suppression, once accepted as a way of life, is likely to
115. Immigration and Nationality (McCarran-Walter) Act, 8 U.S.C. §§ 1101-1525
116. See Gary, supra note 96, at 235 ("In short, McCarran-Walter gave government
officials wide, unchecked discretion to exclude persons on ideological grounds,
presuming aliens automatically guilty of being a threat to the United States because of
their beliefs and associations.").
117. See Beall, supranote 109, at 698 ("The McCarran Act required the registration
of all Communist Party members, prohibited any Party member from working in a
defense facility, holding office with a labor organization, or, among other things,
obtaining a passport, and sometimes required the deportation of past or present Party
118. See Communist Party of the United States v. Subversive Activities Control
Bd., 367 U.S. 1, 103, 114 (1961) (refusing to declare McCarran-Walter Act
unconstitutional despite First Amendment right of association and due process challenges).
119. See Gary, supra note 96, at 233. President Truman stated that "[t]o punish
undefined activities departs from traditional American insistence on established
standards of guilt. To punish an undefined purpose is thought control." President's
Message to Congress Vetoing the Immigration and Nationality Act, 1952-53 PUB.
PAPERS 441, 445 (June 25, 1952) (internal quotations omitted).
Government activity finally reached the Bill of Rights' resistance
point when some anti-Vietnam protest groups gained the attention
of intelligence officials in the late 1960s, garnering surveillance
status in the early 1970s.120 The FBI's Counterintelligence Program
("COINTELPRO") and the CIA's Operation Chaos compiled lists
of thousands of questionable individuals that participated in
antiVietnam protesting and other "subversive" activities.2 1 The
intense surveillance of American citizens suspected of
anti-government and, later, terrorist action threatened American civil liberties
and became much too intrusive, arousing the attention of the
Senate Select Committee to Study Governmental Operations with
Regard to Intelligence.122 This Committee concluded that "the
government and intelligence community had overstepped their
authority and threatened Americans' civil liberties (i.e., privacy, free
speech and freedom of association).' 2 3 Congress rejected the
intense scrutiny authorized against Communists and foreigners called
for by the Smith Act'24 and McCarran-Walter Act 12 5 when directed
instead at American citizens. Congress' reaction briefly halted the
march towards "tougher" and more unconstitutional antiterrorist
The stark reality of international terrorism became an impetus
for expansion of American terrorist legislation in the eighties. On
October 7, 1985, terrorists allegedly affiliated with the Palestinian
Liberation Organization ("PLO") hijacked the Achille Lauro
cruise liner as it traveled through international waters in the
Mediterranean Sea. 126 In the course of the hijacking the terrorists
murdered Leon Klinghoffer, a physically-challenged American
citizen. 127 The ensuing public fallout to the Achille Lauro incident
resulted in innovations to antiterrorist legislation.
LAW JOURNAL [Vol. XXVII
The United States extended its jurisdiction to foreign nationals
involved in acts that harmed American citizens with the Omnibus
Diplomatic Security and Anti-Terrorism Act of 1986.128 This Act
allowed United States officials to prosecute any individual found
on American soil who had committed a terrorist act anywhere in
the world against an American citizen.129 The Anti-Terrorism Act
of 1987130 attempted to deal directly with the perceived terrorist
threat posed by the PLO.1 3 This Act explicitly prohibited all
fundraising on behalf of the PLO, 3 2 and provided criminal
punishment for anyone who attempted to further the interests of the
PLO. 3 3
Under the Anti-Terrorism Act of 1987,'13 the Department of
Justice attempted to shut down the PLO's Permanent Observer
Mission to the United Nations that the Headquarters Agreement1 35
expressly authorized. 36 The PLO resisted the Department of
Justice's action in United States v. Palestinian Liberation
Organization, 3 7 and the New York Southern District Court kept the
Permanent Observer Mission open. 138 The same court, however,
upheld the Anti-Terrorism Act of 1987139 when sixty-five American
citizens challenged it on First Amendment free speech and
freedom of association grounds in Mendelsohn v. Meese. 4 ' The
Mendelsohn court held that the Anti-Terrorism Act of 1987 may
constitutionally "put a halt to the operations of the PLO in the
United States apart from the Mission to the United Nations, 141
but does not prohibit an information office "which accepts no
money from the PLO and in no sense purports to act in any kind of
official capacity for the PLO. '142 In essence, the court's ruling in
Mendelsohn extended the constitutionally permissible control of
suspect organizations within the United States from the exclusion
powers of the McCarran-Walter Act. 143 Although Congress'
reaction to COINTELPRO and Operation Chaos in the early
seventies 144 indicated that the government could not list and scrutinize
suspicious individuals and groups, Mendelsohn allowed the
government to legislate the permissible behavior of individuals claiming
membership in designated groups. 145
With no immediate threat of terror, enlightened drafting and
enforcement of antiterrorism legislation appeared with the
Immigration and Nationality Act of 1990.146 This Act temporarily
derogated the untethered exclusionary principles of the
McCarranWalter Act to the annals of history. 147 Congress repealed all of
those ideological grounds for exclusion, citing "actual participation
in a terrorist act' ' 148 as a guideline for exclusion based upon
national security. 149 Under the Immigration and Nationality Act of
1990, mere membership in the PLO was no longer sufficient
grounds for exclusion, barring active involvement in an effort of
140. 695 F. Supp. 1474, 1476
. Sixty-five plaintiffs brought varied
claims that the Anti-Terrorism Act of 1987 "violates their rights to receive
information and to engage in face to face dialogue." Id. at 1477. Regardless of First
Amendment violation allegations, the court held that the Act "may permissibly put a halt to
the operations of the PLO in the United States[,] apart from the Mission to the
United Nations . . . ." Id. at 1490.
143. 8 U.S.C. §§ 1101-1525 (1994).
144. See supra notes 122-125 and accompanying text.
145. 695 F. Supp. at 1474.
146. 8 U.S.C. § 1182(a)(3) (1994).
147. See Gary, supra note 96, at 240 ("With the repeal of the McCarran-Walter's
ideological exclusions, Congress finally refuted guilt by association as a guiding force
in United States immigration law.").
149. See 8 U.S.C. § 212(a)(3)(iii) (stating that an alien may be excluded for "any
activity a purpose of which is the opposition to, or the control or overthrow of, the
Government of the United States by force, violence, or unlawful means").
political violence.150 Unfortunately, the progressive changes of the
Immigration and Nationality Act of 1990 were short-lived.' 5'
CURRENT TERRORISM LEGISLATION
The Northern Ireland Provisions in 1998
With Ireland on the verge of peace, a brief eruption of violence
in August, 1998152 set British antiterrorism legislation back onto its
old course. The Northern Ireland (Sentences) Act, 53 which passed
in July of 1998, provided for the possibility of declaring the IRA a
legal organization and freeing 402 convicted terrorists within two
years. 54 Moreover, Home Secretary Jack Straw spoke of repealing
the internment provisions of the EPA155 and allowing the exclusion
powers to lapse. 56 In the aftermath of the Omagh bombing
however, the British Parliament rushed 157 to enact the TCA. 158
ing in tandem with the newly amended and reenacted Emergency
Provisions Act, 15 9 the Criminal Justice Act presents fresh
ammunition for the war against terrorism in Northern Ireland.
Parliament's 1998 amendment of the EPA moved the expiration
of the Act's temporary provisions to June
,160 and the
expiration of the Act itself to August 24, 2000.161 The new EPA also
repeals all prior provisions regarding the internment of suspected
terrorists.1 62 Most importantly, however, section 5 of the 1998
Emergency Provisions Act requires that police officers "make a
code of practice" of audio recording interrogations of individuals
suspected of violating scheduled offenses. 163 Not only will this
"practice" create hard incontrovertible evidence of the content of a
suspect's statement or confession to the police, but the recording of
interrogations will yield the residual benefit of dissuading officers
from engaging in techniques that violate a suspect's civil rights. An
audio tape can retain incriminating evidence against an
overzealous member of the RUC just as easily as it can against a hardened
After years of renewing the PTA, British policymakers decided
that the time had come for permanent anti-terrorism legislation,' 64
embodied in the TCA.165 The TCA retains most of the PTA's
provisions,166 but without the inherent restrictions of temporary
legislation that require continual renewal and revision. While exclusion
lated, Claims Benn, BIRMINGHAM POST, Sept. 5, 1998, at 2 (quoting former Labour
Cabinet Minister Tony Benn).
158. Ch.40 (1998) (Eng.).
and internment have fallen to the cutting room floor, the police's
broad investigatory powers, a defendant's denial of the right to
inference-free silence and the scheduled offenses remain as strong as
Parliament added a disturbing new twist to these already plenary
powers by allowing into evidence the opinion testimony of police
officers.168 The TCA in part provides that "if a police officer of or
above the rank of superintendent states in oral evidence that in his
opinion the accused - belongs to an organisation which is
specified, or belonged at a particular time to an organisation which was
then specified... the statement shall be admissible as evidence."' 6 9
Just as with the provisions abrogating the right to silence, 7 ° the
police opinion section of the TCA states that an individual may not
be convicted solely on the basis of such opinions,'17 1 but makes no
mention of whether a negative inference drawn from silence
provides sufficient corroborating evidence to secure a conviction. The
admissibility and impact of police opinions do not decrease
because of an absence of evidence to back it up. 1 72
The TCA's standards extend from the borders of Northern
Ireland to international "terrorist" organizations. 73 The government
may enforce the Act with equal vigor against groups based in
England that operate abroad. 74 The TCA could render illegal protest
demonstrations against the Soviet presence in Estonia, 75 as well as
support of the work of Nelson Mandela and the African National
167. See ch. 40, §§ 1-3 & scheds. 1-2 (1998) (Eng.). But see Rachel Donnelly, IRT
Home News: Ruling Could Make PTA Convictions Unsafe, IRISH TIMES, Mar. 31,
1999, at 8 ("The Lord Chief Justice, Lord Bingham, said Section 16 of the PTA
undermined a defendant's right to be presumed innocent until proven guilty. It reversed
the burden of proof by requiring a defendant to establish that alleged terrorist items
in his or her possession were for innocent purposes.").
168. See ch. 40, sec. 1, §§ 2A(2)-(3) & sec. 2, §§ 30A(2)-(3) (1998) (Eng.).
169. Id. sec. 2, §§ 30A(2)-(3)(a).
170. See id. sec. 2, § 30A(6)(b).
171. See id. sec. 2, § 30A(3)(b).
172. See id. sec. 1, §§ 2A(2)-(3) & sec. 2, §§ 30A(2)-(3). But cf Donald Findlay,
Cut Crime, Not Corners, SCOT. ON SUNDAY, Sept. 6, 1998, at 15
Why should we accept the opinion of a policeman? The duty of the police is
to collect the evidence, not pass a judgement upon it.... Frankly, if the
police are not able or prepared to produce that evidence, it seems to me that
the mere statement is worth nothing and the innocent may be wrongly
173. See ch. 40, §§ 5-7 (1998) (Eng.)
174. See id.
175. See Sarah Schaefer, Liberal Democrat Conference: Northern Ireland -
AntiTerrorMeasures 'Shocking,' INDEP. (London), Sept. 24, 1998, at 10.
Congress against apartheid in South Africa,17 6 and even the French
Resistance during World War 11.177 Although many MP's 178 voiced
concern regarding the broad international sections of the TCA, 17 9
it still passed the House of Commons by a vote of 220 to 24.180
Antiterrorism and Effective Death Penalty Act of 1996
The AEDPA arose in the wake of the Oklahoma City
bombing.181 Upon signing the AEDPA into law, President Clinton
stated, "So let us honor those who lost their lives by resolving to
hold fast against the forces of violence and division, by never
allowing them to shake our resolve or break our spirit, to frighten us
into sacrificing our sacred freedoms or surrendering a drop of
precious American liberty."'18 2 Unfortunately, some provisions of the
AEDPA attempt to restrict terrorist activity at the expense of
exactly those "sacred freedoms" America holds so dear.'83
Specific Provisions of the AEDPA
A large portion of the AEDPA provides new tools with which
law enforcement and administrative agencies may combat
terrorism. 184 Before many of these provisions can go into effect, the
Secretary of State must first designate a group as a foreign terrorist
organization. 85 On October 2, 1997, Secretary of State, Madeline
Albright designated thirty groups as foreign terrorist
organizations. 186 Surprisingly absent from the list was the IRA, and the
many other groups involved in the conflict in Northern Ireland. 187
These designations expire, unless renewed, after two years. 188
Although the courts
designations, 8 9
some fear that this review power is illusory, and ultimately the
political tide will determine which groups end up on the
administration's hit list. 190
Extending the principle of guilt by association that was
abandoned with the Immigration and Nationality Act of 1990,'9' as well
as raising First Amendment questions of free speech and freedom
of association, 192 the AEDPA criminalizes the giving of support to
of Press Secretary Jamie Rubin) ("[A] terrorist organization targets innocent civilians
to make their political point.").
186. See TerroristOrganizations,POST-STANDARD (Syracuse), Nov. 26, 1997, at B6;
USIA: Designationof Foreign Terrorist Organizations,M2 PRESSWIRE, Oct. 9, 1997
(listing the designated organizations: Abu Nidal Organization, Abu Sayyaf Group,
Armed Islamic Group, Aum Shinrikyo, Euzkadi Ta Askatasuna, Democratic Front
for the Liberation of Palestine - Hawatmeh Faction, HAMAS, Harakat ul-Ansar,
Hizballah, Gama'a al-Islamiyya, Japanese Red Army, al-Jihad, Kach, Kahane Chai,
Khmer Rouge, Kurdistan Workers' Party, Liberation Tigers of Tamil Eelam, Manuel
Rodriquez Patriotic Front Dissidents, Mujahedin-e Khalq Organization, National
Liberation Army, Palestine Islamic Jihad - Shaqaqi Faction, Palestine Liberation Front
Abu Abbas Faction, Popular Front for the Liberation of Palestine, Popular Front for
the Liberation of Palestine - General Command, Revolutionary Armed Forces of
Colombia, Revolutionary Organization 17 November, Revolutionary People's
Liberation Party/Front, Revolutionary People's Struggle, Shining Path and Tupac Amaru
187. See Brian Rohan, IRA Omitted from Clinton's Terror List: Move Criticized by
Unionists,Sen. Diane Feinstein,IRISH VOICE, Oct. 21, 1997, at 7 ("'The IRA is one of
the oldest, most violent and indiscriminate of terrorist organizations in modern
history .... Their omission may well be misread as an invitation to their membership to
conduct fundraising and other activities in the [United States] ..... (quoting Sen.
188. See Designationof Foreign Terrorist Organizations,supra note 186.
189. See People's Mojahedin Org. v. United States, No. 97-1648, 1999 WL 420471,
at *5-6 (D.C. Cir. June 25, 1999) (holding that a court may review the Secretary of
State's determinations that an organization is foreign and engages in terrorist activity,
but not her determination that the organization's activities threaten national security).
190. See CounterterrorismLegislation Hearing Before the Subcomm. on Terrorism,
Tech., and Gov't Info.... on S. 390 and S. 735, 104th Cong. (1995) [hereinafter Cole
Testimony] ("[T]he statutory definition of 'terrorist organization' is so open-ended
encompassing literally tens of thousands of potential organizations, and hundreds of
thousands of affiliated organizations and persons - that it effectively gives the
President carte blanche to blacklist groups and attach criminal consequences to the
designation." (testimony of David Cole, Professor, Georgetown University Law
191. 8 U.S.C. § 212(a)(3)(iii) (1994).
192. See discussion infra Part II.B.2.
designated terrorist organizations. 93 Congressional leaders hoped
to weaken the strength of terrorist organizations by cutting off
access to support systems, for "terrorism is not a self-sustaining
enterprise. It needs money and supplies to succeed."' 94 As current
legislation already prohibits fundraising and contributions to a
group's terrorist actions, 95 this ban extends to the humanitarian
activities of organizations deemed terrorist. 196 Congress decided to
enact this extension of criminal liability in support of the peaceful
and legal branches of designated groups because "foreign
organizations that engage in terrorist activity are so tainted by their
criminal conduct that any contribution-to such an organization facilitates
that conduct.' 1' 97
Immigrants' status in the United States became more tenuous
with the passing of the AEDPA. The Act provides for the
exclusion of foreigners and deportation of resident aliens who violate
certain criteria. 98 Foreigners affiliated with a designated terrorist
group will have a hard time gaining any kind of visa or entry into
the United States.' 99 In addition to the penal sanctions risked by
ordinary citizens associated with terrorist groups, legal resident
aliens easily could face deportation, as can those immigrants who
have engaged in certain criminal activity.20 The AEDPA has
broadened the latter category of deportable aliens by removing
some exceptions previously available to those who had committed
particular crimes,2"' and who had lived legally in the United States
for at least seven years.20 2 The logic behind this latest form of
American exclusion is that "immigrants allowed to live in the
1 193. See Antiterrorism and Effective Death Penalty Act of 1996 Pub. L. No.
104132, §§ 303, 321-330, 110 Stat. 1214, 1250-58.
194. Albright, supra note 7.
195. See Cole Testimony, supra note 190 (citing 18 U.S.C. § 2339A).
196. See Beall, supra note 109, at 699; Humanitarian Law Project v. Reno, 9 F.
Supp. 2d 1176, 1204-5
(C.D. Cal. 1998)
(granting preliminary injunction of plaintiffs
who wish to provide humanitarian support to the Tamil Tigers and the Kurdistan
197. § 301(a)(7), 110 Stat. at 1247; see also U.S. Dep't of State: Daily Press Briefing,
supranote 185 ("[Wlhen it comes to taking down the infrastructure, our rule of
reason is [that] that infrastructure provides assistance to the military wing.
(statement of Press Secretary Jamie Rubin)).
198. See tit. IV, 110 Stat. 1258-81.
199. See Smith, supra note 120, at 269.
200. See id.
201. See id. at 271 (listing examples of deportable offenses including: "aggravated
felony, controlled substance violation, firearm offenses, and two or more crimes
involving moral turpitude").
202. See id.
United States should not be committing crimes, and criminal
aliens should not even get past the border.
To facilitate the deportation process, the AEDPA established
special removal courts.0 4 In a similar vein as the Diplock courts,2°5
the removal courts' procedures eliminate due process protections,
effectively streamlining the deportation action. 0 6 The AEDPA
discards the Federal Rules of Evidence in deportation hearings,20 7
allowing the use of unlawfully obtained evidence by the
government.z°8 Invoking the questionable doctrine of national security,
Congress also allows the government to use secret evidence against
individuals in removal hearings. 0 9
While United States v. Reynolds210 permits the protection of
secret information, "[ilt is ...the firmly held main rule that a court
may not dispose of the merits of a case on the basis of ex parte, in
camera submissions."'211 Reynolds, however, only prevented the
discovery of secret government documents in the context of civil
claims2. 12 The Reynolds Court explained that such privilege has no
place in a criminal context because, "the Government which
prosecutes an accused also has the duty to see that justice is done, it is
unconscionable to allow it to undertake prosecution and then
invoke its governmental privileges to deprive the accused of anything
which might be material to his defense. 2 13 Although a
deportation hearing is not a criminal prosecution, they bear a closer
resemblance than a deportation hearing and a civil trial.2 14 The
204. See id. at 268-69.
205. See discussion supra Part I.A.2.
206. See infra notes 210-16 and accompanying text.
207. Pub. L. No. 104-132, § 401, 110 Stat. 1214, 1260 (amending the Immigration
and Nationality Act, 8 U.S.C. § 1534(h) (1999)).
208. See 8 U.S.C. § 1534(e)(1)(B). ("[A]n alien subject to removal under this
subchapter shall not be entitled to suppress evidence that the alien alleges was unlawfully
209. See id. § 1534(e)(1)(A).
210. 345 U.S. 1 (1952) (holding that the head of a governmental department, in this
case the Secretary of the Air Force, may assert privilege protecting military secrets to
prevent discovery of an airplane crash report by plaintiff widows of deceased
211. Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986), affd, 484 U.S. 1
212. Reynolds, 345 U.S. at 12.
214. Compare Reno v. American-Arab Anti-Discrimination Comm., 119 S.Ct. 936,
947 (1999) ("While the consequences of deportation may assuredly be grave, they are
not imposed as a punishment."), with id. at 950 (Ginsburg, J., concurring) ("As this
court has long recognized '[t]hat deportation is a penalty - at times a most serious
permissible use of secret evidence creates an environment for
dangerous and unjust decisions, such as the situation that befell Ellen
Knauff in 1950 when the Immigration and Naturalization Service
("INS") denied her entry into the country based upon frivolous
secret evidence provided by a jilted former lover of her husband.215
While Congress "may prescribe conditions for [a lawful resident
alien's] expulsion and deportation, not even Congress may expel
him without allowing him a fair opportunity to be heard. '216 The
removal provisions of the AEDPA tread precariously near this
Response to and Ramifications of the AEDPA
Aside from the increased police powers,217 the AEDPA raises a
number of controversial issues. Challenges to the AEDPA's
fundraising ban on First Amendment free speech and association 218
grounds are currently pending. 219 The AEDPA gave the President
the power to condemn individuals for their affinity to the political
ideals of designated terrorist groups. 220 The AEDPA goes even
one - cannot be doubted."' (alteration in original) (quoting Bridges v. Wixon, 326
U.S. 137, 154 (1945)), and id. at 956 (Souter, J., dissenting). In his dissent, Justice
Souter voiced the concern that
The interest in avoiding selective enforcement of the criminal law... is that
prosecutorial discretion not be exercised to violate constitutionally
prescribed guaranties of equality or liberty. This interest applies to the like
degree in immigration litigation, and is not attenuated because the deportation
is not a penalty for a criminal act ....
Id. at 956 (citations omitted).
215. See CounterterrorismLegislation Hearing Before the Subcomm. on Terrorism,
Tech., and Gov't Info.... on S. 390 and S. 735, 104th Cong. (1995) (testimony of
Gregory T. Nojeim, Legislative Counsel, American Civil Liberties Union) (citing
ELLEN KNAUFF, THE ELLEN KNAUFF STORY XV-XVi (1952)).
216. Kwong Hai Chew v. Colding, 344 U.S. 590, 597-98 (1953); see also Rafeedie v.
INS, 880 F.2d 506 (D.C. Cir. 1989) (affirming preliminary injunction against an INS
attempt to use secret information to exclude permanent resident alien); Rafeedie v.
INS, 795 F. Supp. 13 (D.D.C. 1992) (holding government's attempt to use secret
evidence to exclude alien unconstitutional).
217. See James Ledbetter, Press Clips: Hello Ollie!, VILLAGE VOICE, June 4, 1996,
at 22. A passage in the legislative findings of the AEDPA says, "'the President should
use all necessary means, including covert action and military force, to disrupt,
dismantle, and destroy international infrastructure used by international terrorists, including
overseas terrorist training facilities and safe havens."' Id. (quoting AEDPA
§ 324(4)). "'What Reagan and Oliver North did illegally, any President now has the
legal authority to do."' Id. (quoting former Gov. Jerry Brown).
218. See Beall, supra note 109, at 700; Cole Testimony, supra note 190.
219. See ADL Brief Urges Court to Uphold Anti-Terrorism Act, U.S. NEWSWIRE,
(indicating that HumanitarianLaw Project v. Reno awaits decision on
constitutionality of fundraising ban in appeal to the Ninth Circuit Court of Appeals).
220. See discussion supra Part II.B.1.
further to forbid individuals from providing humanitarian aid to
such groups, many of whom provide food, shelter and education to
an otherwise oppressed people. 221 Although the United States
Supreme Court has yet to directly rule on the constitutionality of
the AEDPA's fundraising provisions, the Ninth Circuit Court of
Appeals held in American-Arab Anti-Discrimination Committee v.
Reno 222 that "targeting individuals because of activities such as
fundraising is impermissible unless the government can show that
group members had the specific intent to pursue illegal group
The deportation components of the AEDPA may remove
unwanted aliens from American shores, but overzealous
enforcement2 2 4 has had unanticipated results. Many legal alien residents
have been deported for reasons unrelated to terrorism, raising
questions regarding the validity of the AEDPA. Hundreds of
longterm residents have gone abroad on vacation to be met by arresting
officers upon their return.2 5 Lorraine Paris provides one such
example: INS officials detained Ms. Paris upon her return to New
York from her honeymoon because of a late 1970's marijuana
conviction. 2 6 Additionally, once the government ejects these
"crimi221. ComparePlaintiffsSeek Right to Aid Groups on U.S. TerrorList, WASH. POST,
Mar. 20, 1998, at A22 (referring to lawsuit arguing that plaintiffs should be able to
donate food, clothing and other items to orphanages and refugee centers run by the
Tamil Tigers), and Ben Barber, Controversy Dogs People's Mojahedin: State Lists
Hill's Heroes as Terrorists,WASH. TIMES, Apr. 22, 1998, at A15 (indicating that "224
members of Congress had signed a statement urging the United States to support the
[People's Mojahedin]. . . . 'One man's terrorist is another man's freedom
fighter' "(quoting Rep. Gary L. Ackerman)), with ADL Brief Urges Court to Uphold
Anti-Terrorism Act, supra note 219 ("[G]roups like Hamas use the schools, mosques
and clubs they fund 'to recruit individuals to serve as suicide bombers,' and then
provide support for their families 'once the attack has been carried out."' (quoting ADL
222. 119 F.3d 1367 (1997), vacated, 119 S. Ct. 936 (1999) (refusing to resolve First
Amendment issue as the Illegal Immigration Reform and Immigrant Responsibility
Act deprives the court jurisdiction over claim). But see 119 S. Ct. at 948 (Ginsburg, J.,
concurring) ("[I]nterlocutory intervention in Immigration and Naturalization Service
(INS) proceedings would be in order, notwithstanding a statutory bar, if the INS acts
in bad faith, lawlessly, or in patent violation of constitutional rights.").
223. American-Arab Anti-DiscriminationComm., 119 F.3d at 1376.
224. See James Ridgeway & Jean Jean-Pierre, Crime Story: The U.S. Exports Its
Bad Boys Back to Haiti, VILLAGE VOICE, Oct. 22, 1996, at 31 ("According to the
Immigration and Naturalization Service 33,159 aliens have been deported so far this
fiscal year, up from 32,347 a year ago. 'I am very confident that we will meet and
exceed our goal of 62,000 total removals (final deportations) for this year."' (quoting
David Martin, general counsel, INS)).
225. See Antonio C. Campo, New Anti-Terrorism Law Harsh to Immigrants, FILI.
PINO REP., Aug. 8, 1996, at 20.
226. See id.
nal" aliens from the United States, they return to their native
countries, bringing their problems with them. Newly deported
Haitian-born criminals have increased the size of existing
zenglendo gangs and now risk overrunning the already unstable
nation.227 While it may not be a major concern of the United States if
Haiti becomes a criminal playland, American foreign policy
officials would not like to see the military intervention that returned
Jean-Bertrand Aristide's administration to power go to waste.228
The broad powers and discretion granted by the AEDPA invite
inconsistent, unexpected and sometimes catastrophic effects.
NEw DAY RISING?
Governments have historically implemented a number of failed
antiterrorist policies. 229 In order to properly form legislation to
prevent terrorism, however, one must first understand the roots
and goals of terrorist action. "[T]errorist violence is aimed
specifically at influencing not so much government decision makers or
leaders of governments, but civilian populations: to have a
psychological effect on that audience in the hopes that they will pressure
government into either submitting or overreacting. '' 230 The United
States, paralleled by Great Britain, has consistently refused to
buckle to terrorist action, instead leaning towards the latter
extreme of over-legislating. It is such overreaction that undermines
the foundation of civilized society and yields the very results
sought by terrorists.231
One unfortunately typical response to terrorism focuses on
eliminating the threat by relocating or isolating it.232 Exclusion orders
in Britain and deportation in America both attempt to remove
dangerous factors from society. This strategy can never succeed
227. Compare Ridgeway, supra note 224, at 31, with Walker, supra note 60, at 17
("After all, removal to Northern Ireland, the heartland of paramilitary activity against
the British state, seems to increase rather than decrease the opportunity for military
228. See Ridgeway, supra note 224, at 31 ("The gangs, swollen by recent U.S.
deportees, are pushing the country further and further back into just the sort of chaos
the U.S. Army rescued it from . . ").
229. See Martha Crenshaw, Unintended Consequences: How DemocraciesRespond
to Terrorism, FLETCHER F. WORLD AFF., Fall 1997, at 153, 156.
230. Id. at 154.
231. See Tam Dalyell, Obituary: Roger Slott, INDEP. (London), Aug. 10, 1999, at 6
(stating that long-time Labour MP Roger Slott believed that "the powers in the
Emergency Provisions Act weakened the core principles on which a civilised society is
based. That in itself was of assistance to terrorists in their evil campaign [of]
232. See Crenshaw, supra note 229, at 157.
because moving a volatile element does not defuse its destructive
power, but merely transplants it.233 Exclusion of a suspect between
states, or from a country entirely, arbitrarily deprives liberty, free
travel, access to family and nothing else. 234 Further, partial action
towards individuals loosely associated with terrorist groups often
tends to tighten their binds to the organization, forcing people
underground and "increas[ing] recruitment into the deeply
clandestine armed groups, which exacerbate[s] terrorism. ' 235 By excluding
or deporting a suspected terrorist, a nation often pushes an
individual out of its bed and into the arms of her devoted terrorist
brethren. The United States would be better advised to zealously
prosecute the people with clear and unequivocal ties to the violent
activities of a terrorist enclave.
Improving security measures in hopes of preventing terrorist
strikes produces some reasonable results in the short term. 36 The
fatal flaw with this approach remains that terrorists have increasing
access to newer and more powerful technologies to evade such
security procedures. Terrorists rarely identify with individual
sponsor-states, now instead favoring mobile, transnational structures.237
No matter what precautions a country takes, "'[tierrorists have an
inherent advantage .... They can attack anywhere, any time. And
you cannot protect everything, everywhere, all the time."' 2 38
Nations can proportionally increase their fortifications in response to
each new technological breakthrough, but at what point does this
Pyrrhic war resolve anything? Right now in America, "'[t]he
technology exists for imposing an Orwellian state with unprecedented
degrees of control.' 1 39 While temporarily complicating attacks
and providing some peace of mind, improving security measures
ultimately will not end terrorism, it is merely a delaying tactic.
233. Cf. Walker, supra note 60, at 17 ("[C]riminal charges are preferable if
sufficient evidence is available to sustain them, for imprisonment is a more effective
method of prevention.").
234. See Aolain, supra note 43, at 1384.
235. Crenshaw, supra note 229, at 157.
236. See id. at 158.
237. See Carla Anne Robbins & John J. Fialka, A Step Behind: Despite Tough
Words, Antiterrorism Effort in U.S. Is Still Flawed,WALL ST. J., July 22, 1996, at Al
("It's impossible to know where to send a Tomahawk missile to punish these guys
.... (quo.ting a senior State Department official)).
238. Id. (quoting Brian Jenkins, deputy chairman, Kroll Associates).
239. Id. (quoting Brian Jenkins, deputy chairman, Kroll Associates); see also
William Greider, The Cyberscare of '99, ROLLING STONE, Aug. 19, 1999, at 51 (exploring
the Clinton administration's fear of terrorist strikes at American utilities and
economic centers over the internet and government plans for cyber-countermeasures).
The most extreme, and obvious, response to terrorism lies with
military force. However, this approach often causes more harm as
increased terrorist casualties augment the terrorist motive for
revenge, feeding the perception that their terrorist campaign is really
a "holy war" against unjust oppression. 24 ° "The IRA admits it
cannot overthrow British rule through military might; its goal is to
simply outlast the British."' 241 England has made much more progress
towards lasting peace by sitting down at a table with republican
leaders than America has by refusing to negotiate with terrorists.
Military intervention generally results in greater bloodshed on
both sides of the gun, as evidenced by the bombing of Pan Am
flight 103 in retaliation to America's raid on Libya.242
While some believe that terrorists cannot be understood nor
reasoned with,243 the situation in Northern Ireland illuminates the
assistance a working knowledge of a movement's past can impart.
In analyzing British history and legislation, the "failure of policy
and implementation led the authors of one comprehensive study to
conclude that '[t]he [United Kingdom] is not 'above' the [Northern
Irish] problem, it is an integral part of that problem.'" 244 The
restrictive policies implemented by the British have reinforced the
historical feelings of oppression at the core of Northern Ireland's
"Troubles" and, in so doing, magnified them. American politicians
must learn from their British counterparts. Neither reviving the
exclusionary principles of the McCarran-Walter Act, embracing the
McCarthy-ist paranoia of foreign foes, nor following the English
restrictions on due process, will end the long struggle against
terrorism. This rash of antiterrorist law charting the "politics of the
last atrocity" does not attack the root of terrorism. Political reality
must not define constitutional reality. The American colonists
threw off the yoke of British rule for a reason: they did not like
Britain's laws and policies.
The primary distinction between the terrorist threats to Britain
and those to America lies in the fact that Britain's problems
primarily come from within, while America's are primarily external.
240. See Crenshaw, supra note 229, at 159.
241. Myers, supra note 18, at 32.
242. See Crenshaw, supra note 229, at 159.
243. See Steven Emerson, Stop Aid and Comfort for Agents of Terror,WALL ST. J.,
Aug. 5, 1996, at A18 ("An effective counterterrorism policy must begin with the
understanding that terrorism is the product of an extremist ideological culture, and it
can only be fought using a complete moral, political and military arsenal.").
244. Myers, supra note 18, at 61 (quoting LIAM O'DowD ET AL., NORTHERN
IRELAND: BETWEEN CIVIL RIGHTS AND CIVIL WAR 208 (1980)).
The same discord lies within both countries' "enemies," however.
Opposed to the old days of isolationism, 45 the United States now
plays a hyperactive role in world affairs, yet seems reluctant to
truly immerse itself in the global environment. The recent
negotiations with Republican paramilitaries and Middle-Eastern
fundamentalists have brought all concerned parties closer to resolution
than the EPA, TCA and AEDPA. True bilateral discourse
engenders equality and understanding, two of the United States'
founding virtues. The designation provisions of the AEDPA2 46 only
distance the United States further from the rest of the world and
should therefore be repealed. Police agencies pursue groups that
actively embrace violence, and there is no need then to further
blacklist any other organizations that appear threatening. The
same principles that gave birth to America must inform its
approach towards legislation, encouraging a complete shedding of
traditional egoism and the genesis of an interactive, organic
Terrorism must be recognized for what it is: just another form of
organized crime.2 17 Future legislation should de-emphasize
individual military action and instead reorient the American criminal
justice system towards an international scale. The State
Department must establish closer ties and stronger lines of
communication with foreign states. Cooperation and coordination with
foreign law enforcement agencies can efficiently and effectively
achieve both national and international security goals.
Punishment of terrorists and individuals who support terrorist
violence is laudable, but revisiting well-documented historical
calamities is hardly a wise decision. Disciplining the exercise of the
Constitutional rights of free speech and association and exiling
individuals who hold unpopular views cannot be justified by the vain
hope that such precautions will dissuade extremist paramilitaries
from attacking the next Alfred P. Murrah building. The provisions
of the AEDPA prohibiting charitable contributions to
"designated" organizations248 serve only to further alienate American
245. See supra notes 88-101 and accompanying text.
246. Pub. L. No. 104-132, § 302, 110 Stat. 1214, 1248 (1996).
247. See Albright, supra note 4, at 33 ("Terrorism is not a legitimate form of
political expression or a manifestation of religious faith. It is murder."); cf Marilyn
Manson, Columbine: Whose FaultIs It?, ROLLING STONE, June 24, 1999, at 23, 77 ("Isn't
killing just killing, regardless if it's in Vietnam or Jonesboro, Arkansas? Why do we
justify one, just because it seems to be for the right reasons? Should there ever be a
248. See § 303, 110 Stat. at 1250.
and foreign citizens, many of whom only wish to help in what they
perceive as an honorable cause. The State Department should
never tolerate aid given to groups that wage campaigns of violence,
but lines of allegiance among charitable organizations are
sometimes admittedly difficult to discern. The uncertainty involved in
such designations and the real chance of hasty or misguided
certification serve as further reasons to stop forcing government officials
from forging black and white out of a myriad shades of gray.249
The similar mutation of due process in deportation hearings fosters
further paranoia and injustice. For fear of arbitrary persecution,
law enforcement should only pursue an alleged terrorist group and
its members/benefactors after gathering evidence sufficient for
substantive action, and a "conviction" should only be supported by
evidence that would stand up in court.
The AEDPA will not aid American efforts to combat
international terrorism, and should be repealed. A comprehensive
realignment of United States foreign policy towards international
cooperation, grass-roots reform, meaningful dialogue and effective
criminal legislation can break the cycle of fury.
America likes to think of itself as a nation founded upon
principles of liberty and equality. Lest our policymakers forget, the
founding fathers disavowed British imperialism through the
Declaration of Independence, rejecting oppression and government
intrusion into the lives of everyday citizens. Despite the United
States' close ties with Great Britain, there is no reason to follow in
the mistaken footsteps of British antiterrorist legislation that
tramples the civil rights held so dear by those who claim America as
their home, and by those who hope to partake of the rights some
politicians seem either to take for granted or to ignore.
Immigrants of all races and creeds founded America, and the exclusion
and removal elements of the AEDPA deny the diversity and
liberty that built the United States. British laws dealing with
Northern Ireland fail exactly because they do overlook this vital and
basic need of all peoples to be free from persecution and secure in
their individual sovereignty. Legislation plays an important role in
America's anti-terrorism scheme, but "[u]nless it is carefully
crafted - with an abundance of checks and balances against the
249. Some could view the economic support of certain mainstream politicians as a
threat to national security.
possibility of overzealous enforcement - we may one day look
back and wonder whether the terrorists actually achieved their goal
of undermining American society. '25 ° The Anti-Terrorism and
Effective Death Penalty Act of 1996 is not a salvation from terrorism
9. See id. § 702 ( 3 ). The Program originally matched every dollar raised from New York City residents up to $500 per election, subject to a maximum amount in public funds available for the office sought. See id . In 1990 , the formula was changed to one-to-one up to $1000. See id . In 1998 , the matching rate was changed to four-toone up to $250. See id . § 705 ( 2 ). Candidates must also raise a threshold dollar amount in small contributions from a minimum number of City residents to qualify for matching funds . See id. § 703 ( 2)(a).
10. See N.Y.C. CHARTER ch . 46 , § 1052 (a)( 12 ).
11. See id. § 1052 (a)( 11 ).
12. See Jonathan Hicks , Term Law Could Aid Council's Newest , N.Y. TIMES , Feb. 18 , 1999 , at B4; N.Y.C. Campaign Finance Bd ., Press Release, Feb. 17 , 1999 . See also Bill Bradley, Address at the National Press Club (July 22 , 1999 ).
13. See , e.g., Editorial, Time to Make a Good Law Better , N.Y. TIMES , Mar. 2 , 1998 , at A26; Editorial, CampaignReform: Made in New York, DAILY NEWS, Mar . 2 , 1998 , at 30. See also N.Y.C. CAMPAIGN FINANCE BD., A DECADE OF REFORM, supra note 5 (including a comprehensive review of the work of the New York City Campaign Finance Board) .
14. See infra p. 14 .
15. See , e.g., Editorial, The ProsecutorWho Spoke Up , N.Y. TIMES , Aug. 4 , 1998 , at A12; Editorial, Reno Cover-Up Continues,WALL ST . J., Feb. 1 , 1999 , at A20; Editorial, Watching the Watchdog , WALL ST. J., July 1 , 1999 , at A22.
16. See , e.g., David Johnston, Reno Rejects Outside Inquiry On Clinton for Campaign Ads , N.Y. TIMES , Dec. 8 , 1998 , at Al; Editorial, Ms. Reno UnderminesJustice, N.Y. TIMES , Dec. 8 , 1998 , at A26.
17. Letter from Charles G. La Bella to Joseph A. O'Hare , S.J. (Oct. 13 , 1998 ) ( on file at the Board) . In August 1998 , Mr. La Bella was passed over for permanent appointment as the United States Attorney for the Southern District of California, and in February 1999 he was informed that he was to be replaced in that position. He subsequently resigned from the Justice Department . See, e.g., Editorial, The Sword of Justice, WALL ST . J., Feb . 12 , 1999 , at A22.
18. See David Johnston, Ex-Head of Justice Dept. Inquiry Is Barred from Two Talks on Topic , N.Y. TIMES , Nov. 6 , 1998 , at A26.
30. 347 U.S. 483 ( 1954 ).
31. See Editorial , N.Y. TIMES , Nov. 9 , 1998 , at A25.
32. See N.Y.C. ADMIN . CODE § 8 - 107 ( 1998 ).
33. See N.Y.C. ADMIN . CODE § 8 - 108 ( 1998 ) ("The city ordinance requires that if a finding of immediate family status can be made without regard to the formalities of marriage, it must also be made without regard to sexual orientation.").
34. See William J. Brennan , Jr., State Constitutionsand the Protectionof Individual Rights , 90 HARV. L. REV. 489 ( 1977 ).
86. See Aolain, supra note 43 , at 1354 n.6 (citing Prevention of Terrorism (Temporary Provisions ) Act, 1989 , ch. 4, § § 1 - 8 , 14 (Eng.)). The proscribed organizations are: the Irish Republican Army, Cumann na mBan, Fianna na hEireann, the Red Hand Commando, Saor Eire, the Ulster Freedom Fighters, the Ulster Volunteer Force, the Irish National Liberation Army, the Irish People's Liberation Organisation and the Ulster Defence Association . See Northern Ireland (Emergency Provisions) Act , 1996 , ch. 22, sched . 2 ( Eng .).
87. Ch . 56 , § 5 ( 1 ) (a ) ( 1974 ) (Eng .), cited in Walker, supra note 60 , at 11.
88. See Walker, supra note 60 , at 20 n.107.
89. See Aolain, supra note 43 , at 1384. Compare Walker, supra note 60 , at 44 ( "[E]xclusion was essentially a preventative security measure rather than a condemnatory judgment."), with Aolain , supra note 43 , at 1385 ( "[Tjhe notion that persons are considered dangerous in one part of the territory, but not in another, defies common sense, particularly given any understanding of the geography of the Northern Ireland conflict.").
90. See Aolain, supra note 43 , at 1384.
91. See Walker, supra note 60 , at 17.
92. Gerry Adams is the President of Sinn Fein, the political branch of the Irish Republican Army, and sat in the House of Commons from 1983-1992 . See id . at 34 . An exclusion order was entered against him in 1982. See id .
93. See id.
94. See Martin, supra note 3 , at 207- 08 . The government did not enact the Alien and Sedition Acts primarily to deal with terrorism, but to "persecute detractors of the political party in power," which could be analogized to modem domestic insurgents and, to some degree, international terrorists . Id.
95. Alien Act of June 25, 1798 , 1 Stat. 570 (expired 1800 ); Alien Act of July 6 , 1798 , 1 Stat. 577 ; The Sedition Act of July 14 , 1798 , 1 Stat. 596 (expired 1801 ). The Alien and Sedition Acts targeted: persons [who] shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States from undertaking, performing or executing his trust or duty .... Sedition Act § 1 , cited in Martin, supra note 3 , at 207 n.30.
96. See Keisha A. Gary, Note, CongressionalProposalsto Revive Guilt by Association: An Ineffective Plan to Stop Terrorism, 8 GEO . IMMIGR. L.J. 227 , 230 ( 1994 ).
97. Immigration Act of March 3 , 1903 , ch. 1012 , 32 Stat . 1213 .
98. See Gary, supra note 96 , at 230-31; see, e.g., United States ex rel . Turner v. Williams , 194 U.S. 279 , 291 ( 1904 ) (upholding deportation of British national for declaration of anarchist affiliations).
99. Pub . L. No. 104 - 132 , §§ 301 - 302 , 110 Stat. 1214 , 1246 - 50 ( 1996 ) (allowing Secretary of State to designate certain organizations as 'terrorist,' and prohibiting all fundraising on their behalf); id . §§ 401 - 413 ( establishing exclusion and/or removal of alien members in terrorist organizations as designated by the Secretary of State); see also discussion infra Part II .B. 1 .
100. Pub . L. No. 162 , ch. 1012 , 32 Stat . 1213 ( 1903 ).
101. See Gary, supra note 96 , at 231.
102. Espionage Act of June 15, 1917 , Pub. L. No. 24 , ch. 30 , 40 Stat . 217 ( 1917 ).
103. See Martin, supra note 3 , at 208-09.
104. Espionage Act tit. 1 , § 4.
105. Id . tit. 4 , § 1.
106. Id . tit. 5 , § 2.
107. Sedition Act of 1918 , Pub. L. No. 150 , § 3 , 40 Stat . 553 , 553 - 54 (repealed 1921 ).
108. Alien Registration (Smith) Act, ch . 439 , 54 Stat . 670 ( 1940 ).
109. See Jennifer A. Beall, Note, Are We Only Burning Witches? The Antiterrorism and Effective Death Penalty Act of 1996's Answer to Terrorism, 73 IND . L.J. 693 , 697 ( 1998 ) (stating that the Smith Act allowed deportation based upon "past beliefs, advocacy, or membership in an organization that advocated forcible overthrow of the government. The key provision made... membership in any such organization illegal with a penalty of up to twenty years imprisonment." (footnote omitted)).
110. See John A. Scanlan , Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran-WalterAct, 66 TEX . L. REV. 1481 , 1494 ("The notion that communism was a fundamentally alien ideology, staffed by agents who took their orders from Moscow and directed inevitably toward subversion, world revolution, and the destruction of all democratic institutions.., was deeply ingrained in the American psyche.").
111. See id.; see, e.g., Dennis v. United States , 341 U.S. 494 ( 1951 ) (affirming the conviction of the top eleven U.S. Communist party leaders under provisions of the Smith Act) .
113. Ch . 1024 , 64 Stat . 987 ( 1950 ). The Internal Security Act expressly targeted Communists and Fascists for exclusion . See Gary, supra note 96 , at 232.
114. See Gary, supra note 96 , at 232 ( "President Truman, a staunch proponent of liberalizing immigration laws, vetoed McCarran-Walter, stating, '[s]eldom has a bill exhibited the distrust evidenced here for citizens and aliens alike .... .' (footnotes omitted) (quoting President's Message to Congress Vetoing the Immigration and Nationality Act, 1952 - 53 PUB. PAPERS 441 , 444 (June 25, 1952 )).
120. See Roberta Smith, America Tries to Come to Terms with Terrorism: The United States Anti-terrorism and Effective Death Penalty Act of 1996 v. British Antiterrorism Law and InternationalResponse, 5 CARDOZO J . INT'L & CoMP . L. 249 , 259 ( 1997 ).
121. See id. (stating that COINTELPRO opened over five hundred thousand domestic intelligence files and Operation Chaos, in a six year period, "collected thirteen thousand files and other materials including the names of three hundred thousand people and organizations" ).
122. See id.
123. Id .
124. Alien Registration (Smith) Act, ch . 439 , 54 Stat . 670 ( 1940 ).
125. 8 U.S.C. §§ 1101 - 1525 ( 1982 ).
126. See Smith , supra note 120 , at 254 n. 35 ( citing Judith Miller , Hijackers Yield Ship in Egypt; Passenger Slain , 400 are Safe; U.S. Assails Deal with Captors, N.Y. TIMES , Oct. 10 , 1985 , at Al).
127. See id.
128. Pub . L. No. 99 - 399 , 100 Stat. 855 ( 1986 ) (codified as amended in scattered sections of 22 U.S.C.; most recently amended by Pub . L. No. 1 , 03 - 415 ( 1994 )).
129. See Smith , supra note 120 , at 256-57.
130. 22 U.S.C. §§ 5201 - 5203 ( 1987 ).
131. See Smith , supra note 120 , at 257.
132. See Mendelsohn v. Meese , 695 F. Supp . 1474 , 1476 (S.D.N .Y. 1988 ). Congress aimed the Anti-Terrorism Act of 1987 solely at the PLO, as "the PLO is 'a threat to the interests of the United States, its allies, and to international law and should not benefit from operating in the United States."' Id. (quoting 22 U .S.C. § 5201 (b)).
133. See id. (stating that the Anti-Terrorism Act of 1987 rendered illegal the behavior of any person who, "with the purpose of furthering the interest of the PLO: (1) [received] 'anything of value except informational material from the PLO'; (2) [expended] funds from the PLO; or (3) [established] or [maintained] an office" at the direction of the PLO (quoting 22 U .S.C. § 5202 )).
134. 22 U.S.C. §§ 5201 - 5203 .
135. Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations , done June 26, 1947 , 61 Stat. 3416 , 11 U.N.T.S. 11 .
136. See Smith , supranote 120 , at 258 n. 67 ( "The Headquarters Agreement prohibits the United States from restricting access of invitees to the U.N. regardless of the relationship between the United States and the invitee.").
137. 695 F. Supp . 1456 (S.D.N .Y. 1988 ) (holding that the PLO Observer Mission to the United Nations, lawfully established under the Headquarters Agreement treaty, cannot be shut down pursuant to the Anti-Terrorism Act of 1987, especially absent an explicit Congressional statutory instruction ).
138. See id. at 1465.
139. 22 U.S.C. §§ 5201 - 5203 ( 1994 ).
150. Compare 8 U.S.C. § 212(a)(3)(iii), with Anti-Terrorism Act of 1987 , 22 U.S.C. § 5202 (differing in that only a violent, terrorist acts by the PLO would warrant prosecution under the Immigration and Nationality Act of 1990, while the Anti-Terrorism Act of 1987 condemns all activity furthering the PLO's interests) .
151. See discussion infra Part II .B.
152. See House of Commons Hansard Debates, Sept. 2 , 1998 , at col. 693, available in <http://www.parliament. the-stationery-office .co.uk/pa/cm199798/cmhansrd/ cm980902/debindx/80902-x.htm> [hereinafter Hansard Debates] (statement of Tony Blair) (indicating that a 200 to 300 pound car bomb exploded on Market Street in Omagh on August 15, 1998, killing twenty-eight people and injuring over 200, the largest death toll from any one terrorist incident in Northern Ireland) .
153. Ch . 35 ( 1998 ) (Eng .).
154. See John Mullin, Bill Will Free Terrorists in Two Years, GUARDIAN (London), June 6, 1998 , at 11.
155. See British to Enact Permanent Anti-Terrorism Legislation , ASSOCIATED PRESS, Oct. 30 , 1997 ( "Straw also confirmed he would abandon the controversial policy of interning terrorist suspects without trial."); see also Minister Wants Review of Powers, IR . TIMES, Dec. 3 , 1997 , at 8.
156. See Home Office: Government Announces Plans for Permanent Counter Terrorism Legislation, M2 PRESSWIRE , Oct. 31 , 1997 .
The powers to exclude are draconian.... In the light of the recent developments in Northern Ireland, I have come to the conclusion that, at the present time, the exercise of these powers is no longer expedient to prevent acts of terrorism in relation to each of the 12 cases in question. I have therefore today revoked the last 12 orders . Id.
157. The Criminal Justice (Terrorism and Conspiracy) Act pushed through the House of Commons and the House of Lords in two days during an emergency recall of Parliament . See George Jones, Lib-Dem Conference: Leadership Is Attacked Over Anti-TerroristLaws 'Passedin Panic ,' DAILY TELEGRAPH (London), Sept. 24 , 1998 , at 16. Accusations even flew about alleging that politicians used the Queen to speed the process: "'The Queen signed a blank bit of paper. She didn't know what the Bill would be by the time it was finished. To allow that influence to be used during debate is comparable to Charles II entering the House of Commons."' Queen Was Manipu-
159. Ch . 9 ( 1998 ) (Eng .).
160. The EPA set its own expiration date at June 15, 1999 , and Parliament has not yet passed a formal extension of the Act, although Northern Ireland Secretary Mo Mowlam has stated that she intends to further extend the Act's duration. See Politics: Mo Holds on to Anti-Terror Laws, BELFAST NEWS LETTER , May 14 , 1999 , at 8.
161. See ch. 9 , § 1 ( 3 ) ( 1998 ) (Eng .).
162. See id. sched. 2 There is no mention of section 14 of the 1989 PTA, the provision that grants authority for seven-day interrogations without charge discussed in Part I.A.2, anywhere in the 1998 EPA. The TCA gives only cursory reference to those provisions . See ch . 40 , § 3 ( 1998 ) (Eng .).
163. See Northern Ireland (Emergency Provisions) Act , 1998 , ch. 40 , § 5 (Eng.); cf Hansard Debates, supra note 152 , at col. 867 ( statement of Home Secretary Jack Straw) ("There are other safeguards. Since January, there has been a mandatory regime for silent video recording of all interrogations in Northern Ireland.").
164. See Home Office: Government Announces Plans for Permanent Counter Terrorism Legislation,supra note 156 ("The ceasefire in Northern Ireland and the possibility of achieving lasting peace there does not mean that we no longer need special legislation to investigate, to disrupt and to counter terrorism.").
165. Ch . 40 ( 1998 ) (Eng .).
166. See discussion supra Part I.A.2 .
176. See Jones, supranote 157 , at 16 (statement of David Howarth).
177. See id.
178. "MP" is a common British abbreviation for a member of Parliament . See T. R. Reid , Redefining the U.K.; Scotland and Wales Elect First Local Parliaments Today, WASH . POST, May 6, 1999 , at A21.
179. See Peter Kellner , Why We May Live to Regret This Rash New Terror Law, EVENING STANDARD (London), Sept. 3 , 1998 , at 4.
180. See Hansard Debates, supra note 152 , at col. 930. The Republic of Ireland is ironically moving towards its own legislation that somewhat mirrors the EPA and TCA . See Una Bradley, Crackdown on Terror throughout Island , BELFAST TELEGRAPH , Aug . 20 , 1999 .
181. See Martin, supra note 3 , at 201-02.
182. Remarks on signing the Antiterrorism and Effective Death Penalty Act of 1996, 32 WEEKLY COMP . PRES. Doc. 717 ( Apr . 29, 1996 ).
183. See discussion infra Part II .B. 2 .
184. Some of these tools, beyond the scope of this discussion, include the use of taggants in plastic explosives, greater cooperation between the CIA and FBI and increased funding for law enforcement. Taking the foreign jurisdictional extensions of the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 even further, the AEDPA grants civil standing to the aggrieved families of terrorist victims to sue terrorist-sponsoring states . AEDPA, Pub . L. No. 104 - 132 , § 221 , 110 Stat. 1214 , 1241 . The AEDPA also includes a section devoted to habeas corpus reform . See id. tit. I.
185. See 8 U.S.C. 1181 ( 1994 ), amended by Pub. L. No. 302 , § 219 ( a)(1). See generally U.S. Dep't of State: Daily Press Briefing, M2 PRESSWIRE, Oct. 9, 1997 (statement 2 .