Move to reign in terrorism deals blow to American justice system

THE ANTI-TERRORISM act that President Clinton signed last year allows an immigrant accused of being part of or associating with a terrorist group to be deported without being told what evidence the government has against him. The evidence -- if it is evidence and not rumor -- remains secret.

The accused cannot see the documents or testimony that condemns him, nor may the accused know where the material originates. It is impossible to refute what you cannot see and cannot question.


We would do well to remember the lesson in our history and those who were our earliest immigrants.

A treason charge


Sir Walter Raleigh was sentenced to be beheaded for treason on Nov. 17, 1603, without having had the opportunity to confront the testimony or the accuser who sent him to his death.

In 1584, Raleigh, a favorite of Queen Elizabeth, equipped an expedition to the new world. The ship landed on Roanoke Island and founded an ill-fated colony. Raleigh named his discovery Virginia.

When King James came to power, Raleigh was accused of a plot to kidnap the king. The prosecution's evidence against Raleigh relied almost solely upon the written confession of Lord Cobham, who claimed to have been part of the plot.

There is a question as to whether Cobham had been tortured into confessing something he did not do. Not long afterward and before Raleigh's trial, Cobham retracted the confession. But the prosecution would not produce Cobham so that he might be cross-examined in court.

And the judges refused to force the prosecution to do so, although Raleigh requested Cobham's presence. Raleigh was found guilty and eventually executed.

Former Associate Justice of the U.S. Supreme Court William O. Douglas noted in his book of American freedoms entitled, "An Almanac of Liberty," that "The Raleigh trial . . . was one of the reasons why, prior to the federal Constitution, some of the states wrote into their constitutions provisions giving an accused in a criminal trial the right to be confronted with the witnesses against him. It led likewise to the inclusion of the same protection in the Sixth Amendment."

As a matter of fact, it was Virginia on June 12, 1776, that led the states -- nearly a month before the Declaration of Independence was signed -- by including a "confrontation clause" in section 8 of the Virginia Declaration of Rights.

Pennsylvania followed suit with its Declaration of Rights, Aug. 16, 1776. Delaware followed less than a month later, then Maryland and North Carolina.


And the Bill of Rights, ratified on Dec. 15, 1791, includes the confrontation clause in the Sixth Amendment: "In all criminal prosecutions the accused shall enjoy the right to . . . be informed of the nature and cause of the accusation; to be confronted with the witnesses against him . . . ."

Although the U.S. Supreme Court in 1904 held that the confrontation clause of the Sixth Amendment of the Bill of Rights did not apply to the states (some states do not have that clause in their constitutions), the high court began to alter its thinking about incorporating the Bill of Rights so that the amendments apply to the states.

In Pointer vs. Texas (1965), the high court reversed its earlier decision. Justice Hugo Black wrote the opinion for an unanimous court: "We hold today that the Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.

"It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him. And probably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case. The fact that this right appears in the Sixth Amendment of our Bill of Rights reflects the belief of the Framers of those liberties and safeguards that confrontation was a fundamental right essential to a fair trial in a criminal prosecution."

An immigrant suspected of association with a terrorist group is not, strictly speaking, charged with a crime. Nevertheless, the immigrant will be deprived of his or her liberty and held in a detention center run by the Immigration and Naturalization Service -- until deportation.

Immigration officials schedule a hearing. The INS judge presiding at the hearing won't allow the prisoner to learn the nature of the government information. It's classified.


The prisoner's lawyer will also be kept in the dark about the evidence. It's secret.

A different story

The right to confront one's accuser or the documents against one is not considered essential to fairness in an INS hearing. The INS doesn't consider it fundamental to discovering the truth.

While deportation doesn't sound like prison time, it may be as serious as that for those who have families in the United States. Deportation can rip apart the fabric of a family -- just as a criminal prosecution can.

It can have deadly consequences for those sent back to a country they have left for political reasons.

If the INS judge considers the government documents sufficient evidence, he rules in favor of deportation. An INS judge is not a judge in the normal use of the term -- he or she is an administrative official. Yet, under the anti-terrorism law, there is no appeal in a court of law from the INS judge's ruling.


The right to confront the government's witnesses or documents no longer exists for aliens who have entered this country legally.

Apparently, we have forgotten the lesson that Sir Walter Raleigh's beheading taught our founders from Virginia. Or we just don't care anymore.

Charles Levendosky, editorial page editor of the Casper (Wyo.) Star-Tribune, has a national reputation for First Amendment commentary.

Pub Date: 12/03/97