Terror Bill Shuts Door on Death Row Appeals

are seeking entry into the United States." Immigration law allowed legal residents with criminal convictions to remain in the United States if they had been living here for seven years before the Act. Now says Jabara, "the legislation makes whole categories of people ineligible for this waiver and all of a sudden they can be torn away from a country where they may have spent almost their entire lives." The Act also allows low-level immigration officials at more than 300 ports of entry into the United States to decide asylum claims from immigrants fleeing political persecution--hearings that were previously held before judges. But now the decision of an INS officer cannot be appealed to the courts. The Act would dramatically affect victims of terrorism by their own governments who flee to the United States. For example, the 19 year old woman from Togo, Fauziya Kasinga, who fled her country rather than undergo the practice of female genital mutilation may not have won the right to asylum in the United States. Columnist Anthony Lewis writes that since under the Act anyone who flees their country without proper papers will not be considered a legitimate refugee--under this legal test "Fidel Castro's

daughter was not a true refugee because she fled Cuba with a false passport." Lewis adds that under that definition "the Jews who fled the Nazis without papers" wouldn't be "true refugees" either. The Act is already leading immigration authorities to arrest hundreds of legal residents who have committed minor crimes, such as marijuana possession, under parts of the Act that eliminate waivers for non-citizens who may have committed crimes but who have lived for years in this country and have family members here. Yet another provision of the Act that has little if anything to do with terrorism is the portion limiting prisoner access to Habeas Corpus appeals. Habeas Corpus is an age-old right in Western law meaning "produce the body," codified in United States law shortly after the civil war to prevent former slave owners form unjustly imprisoning freed slaves. The Anti*Terrorism Act contains provisions that will open the flood-gates to executions by setting up procedural hurdles to limit appeals to Federal District Courts by the more than 3,000 people on America's death rows. Since 1970, almost half of the death sentences reviewed by federal courts have been reversed and 54 people have been released from death row, but it took, on average,

ten years for death row prisoners to obtain justice. Today under the Act very few of these appeals would even make into a federal court. Death penalty proponents in Congress and on the Supreme Court have been attacking Habeas Corpus petitions and crying for limitations to the "Great Writ" as a way to speed up executions by breaking up what they believe is a logjam of appeals from death row prisoners. But an unintended side effect may be to actually increase appeals, as lawyers bring the Anti*Terrorism Act itself to court by challenging its constitutionality. The United States constitution guarantees some form of Habeas Corpus by providing that it "shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The first case has already come before the Supreme Court and arguments were heard on May 3rd, prompting four of the nine Justices to complain unsuccessfully that the court was moving with "unseemly haste." The legislative counsel for the American Civil Liberties Union, Gregory Nojeim, says the Act establishes an unreasonably short time for filing Habeas petitions, limiting prisoners to only one federal appeal and "virtually strips federal courts of their

authority to review state court decisions for constitutional violations." In June, the Supreme Court, in a 6-3 decision, upheld one new requirement of the Act that requires permission from a Federal appeals court before a prisoner can file a Habeas Corpus petition with the Federal District Court. If that permission isn't granted, the prisoner cannot appeal the decision to the Supreme Court. Chief Justice William Rehnquist gave some indication of the Court's decision when he wrote in support of a provision of the Act requiring the prisoner to show by "clear and convincing evidence" that if not for a constitutional error in the trial the prisoner would have been found not guilty. If that standard is eventually upheld by the court, many death row prisoners whose defense was hampered by biased courts and unfair prosecutions, such as death row journalist Mumia Abu Jamal, would have their legal remedies truncated and could face execution. The ACLU's Nojeim says that Habeas Corpus reform has no business in an Act concerned with terrorism because Habeas Corpus is about the "procedures for appeal once a person is incarcerated and therefore, incapable of engaging in terrorist activity." How is it that a law dealing with

terrorism has as its top provision a measure dealing with the rights of United States citizens facing execution? The Anti*Terrorism act began as a measure proposed by Clinton and members of Congress, aimed at supporters and members of groups that the Secretary of State would be allowed to name as terrorist organizations. From the beginning, the law contained provisions that allowed the government to exclude people from the United States if they held membership in one of the organizations designated as "terrorist" by the government. According to the ACLU, this measure would "exclude those who are not dangerous, but who have ideas the government regards as dangerous." The Anti-Terrorism Act resurrects the McCarren-Walter Act, a law dating back to Senator Joseph McCarthy's reign when anti*Communist hysteria gripped the land. It allowed the government to bar people from the United States based on their political associations. It was used throughout the 1980's to prevent Sandinista officials from Nicaragua and Salvadorans fleeing repression from entering this country to speak directly with the American people. McCarren-Walter was repealed only six years ago with the fall of the Soviet Union, but the law continues in the

guise of the Anti-Terrorism Act with a new focus: international terrorism. Another provision prohibits funding of organizations designated as terrorist, turning banks into enforcers of the Act while giving the green light to the FBI to investigate United States citizens without evidence of a crime being committed. Banks that suspect an account has been used to transfer funds to a so-called "terrorist" organization or an "agent" of such an organization would be severely penalized unless the bank froze that account. The bank is required to act even if it only "believes" the group or individual is an "agent" of a foreign organization deemed "terrorist" or else the bank can be fined $50,000 or twice the amount in question. According to the ACLU, even "funding the legal, non-violent, often charitable activity of groups designated as "terrorist organizations" would be prohibited. A Tortured History Lawyer Abdeen Jabara says that in its early stages, the Counter-Terrorism and Effective Death Penalty Act attracted the attention of "certain forces in Congress who saw this legislation as an opportunity to prevent persons convicted in state court criminal proceedings, particularly those who had received capital punishment sentences, from

over-turning the conviction." After the Oklahoma City bombing occurred, Clinton and his supporters in Congress introduced other amendments,giving the federal government broad new powers to investigate, prosecute and punish acts of domestic terrorism. One of the areas that Clinton addressed in his amendments was to allow police to use "roving wiretaps" that, instead of tapping one phone, allow the tapping of any phone the subject uses. The wiretap issue and an amendment allowing the introduction of illegally seized evidence "set off alarm bells among a number of conservative members of congress," says Jabara, and gave rise to an unlikely coalition of civil libertarians and conservative organizations that were opposed to the legislation. On March 13, 1996 the House of Representatives passed an amendment that eliminated portions of the Act that expanded the wiretap powers of the federal government and prohibited fund-raising in the US on behalf of "terrorist" organizations. After the vote, the point man for the administration, New York Representative Charles Schumer said "I've talked to the White House and now they're very pessimistic" about the future of the Act. The amendment eliminated parts of the Act considered

most harmful by civil libertarians and was supported by 178 Republicans and 67 Democrats. Both Henry Hyde, the Republican chair of the Judiciary committee and John Conyers, the ranking Democrat on the committee both said the amendment, "wiped out the heart and soul of the counter-terrorism legislation. The Act might have died right there if it weren't for another version of the legislation that was passed by the United States Senate only two months after the Oklahoma City bombing. The Senate bill was far broader than the House version and contained almost all of the provisions that the White House wanted; it eventually was passed by a vote of 91 to 8. The White House decided to put its energy into winning a compromise between the two versions that was closer to what the Senate had voted for. That occurred during the conference committee, when representatives of both houses of Congress work out differences in proposed legislation. The conference committee was chaired by Representative Henry Hyde and included Rep. Charles Schumer. It came up with a new version of the legislation on April 15th, 1996, which restored almost all the provisions that had been knocked out in the House amendment--including the Secretary of State's

power to designate "terrorist" organizations--and also defined a new federal crime of "terrorism" allowing the federal government to prosecute crimes that are normally under the jurisdiction of the states. The new version restored provisions for secret evidence to be used in deportations even of long time and permanent legal residents. The final version of the Act was passed by the Senate on April 17th--missing only those provisions allowing roving wiretaps by federal agents and the use of the United States military to assist law enforcement in chemical and biological attacks. Essentially the conservatives in Congress worried about provisions that would allow domestic radical groups--like militias--to be classified as terrorist. The right-wingers demanded and won a definition of "terrorism" as criminal acts involving a foreign power. Therefore attacks like the bombing of the Oklahoma City federal building are not considered "terrorist" acts under the law because they carried out by Americans without foreign involvement. So now a law designed as an answer to an act of domestic terrorism has become a tool to speed up executions, curtail amnesty for people fleeing fascist governments--often set up, run and

supplied by the United States itself--and to speed up thedeportations of long time legal residents who've had only minor brushes with the law. A Case in Point On May 30, a Peruvian living legally in the United States, Julian Calero-Salazar, was arrested in New York City as his name was called at a hearing for political asylum. He had left Peru in 1989 after he was targeted for reprisal by police in his home town of Curi in the Andes mountains. Calero-Salazar's troubles began when he had two thugs arrested for stealing cattle from his family's small farm. The incident led to escalating attacks on his family that ended with Calero-Salazar being branded a "subversive" and his brother-in-law being tortured to death by Peruvian soldiers in 1993 as his mother was forced to watch. In 1994, Calero-Salazar's wife was arrested for allegedly renting a room to a suspected fighter in the Maoist Communist Party of Peru--known in the media as Shining Path. She was held for six months until a $3,000 payment won her release. Peru has been waging a "dirty war" since the early 1980's against a stubborn insurgency based mostly among impoverished Indian peasants of the remote

mountains and forests of Peru. Amnesty International and other human rights monitors have repeatedly questioned the Peruvian government's tactics--which include faceless military tribunals with hooded judges, death squads that have murdered students and university professors, and the arrest of lawyers minutes after suspects are tried and sentenced to horrendous prison terms. Although Julian Calero-Salazar denies any contacts with Peru's revolutionaries and despite the fact the incidents that he is being accused of by Peru occurred AFTER he had left the country for the United States--Calero-Salazar is being held without bail as a suspected "terrorist." Calero*Salazar's case is currently being defended by the Center for Constitutional Rights. Attorneys point out that Calero-Salazar had been openly applying for political asylum in the United States since 1994, but it was only after Clinton signed the Counter*Terrorism and Effective Death Penalty Act that officials moved to arrest and extradite him to Peru. The New York Times published a detailed article in July on the effects of the Act on legal immigrants in the UnitedStates who have had the misfortune of being convicted of even the most minor crime and now face deportation despite

having lived for many years in this country and being gainfully employed and having children and family members who are US citizens. The Act expands the grounds for deporting legal residents to cover any drug offense, including marijuana possession, and so-called "moral turpitude" which includes quality-of-life crimes such as subway turnstile jumping. One woman who has lived in the US since 1970 and has an 18 year old US born son was busted for marijuana possession nearly 20 years ago. She's now being held in an INS facility and is facing deportation. Before the Act was passed, possession of 30 grams or less of marijuana was not grounds for deportation and the law provided for waivers of deportation for hardship cases. Those waivers have all been removed and the INS is actively arresting and deporting people who've lived for decades as legal residents in this country. Immigration lawyers say they'll fight every attempt to deport people under the Act, insuring years of costly court Mumia Abu Jamal On June 27th the highest court in Italy ruled that the death penalty in the United States violates international norms of human rights. Only two "industrialized" countries have death-row populations-*Japan with 32 on death-row and the

United States with 3,000 awaiting death at the hands of the executioner. Last year 56 people were executed in the United States, twice the number of the year before, and this year the number of executions will again double. The day after the Italian court ruled, the United States Supreme Court made its own ruling with Chief Justice Rehnquist stating that the Congress and not the courts should determine the scope of Habeas Corpus. As discussed earlier, Habeas Corpus is the 500 year old right that says no state authority can take away someone's liberty without that person having a right to challenge the legality of what the state does. The politicians have thrown in firmly against Habeas Corpus; for example, Bob Dole has along with President Clinton given full support to the death penalty. In February Dole visited San Quentin prison in California where 400 people are on death-row, and in 1992, then governor Bill Clinton actually went back to Arkansas in the middle of the campaign to preside over an execution. Currently, journalist Mumia Abu-Jamal, arguably the most famous person sitting on death-row in the United States, may be seriously affected by the Counter-Terrorism and Effective Death Penalty Act. Mumia's lawyer,

Leonard Weinglass says:"The government has moved the goalposts and now the standards are almost impossible for anybody to satisfy. Mumia will have to show by clear convincing evidence that no reasonable juror would have reached a conclusion for the death penalty. It's almost an impossible standard and that standard will apply to Mumia's case, we believe, because we are not yet in federal court. What the act does is it changes the jurisdiction of a federal judge. It reduces the power of a federal judge to examine these cases. We're going to be in federal court if we lose in the Pennsylvania Supreme Court in 1997. Early to mid 1997 we'll be in federal court here in Philadelphia if we lose in the state Supreme court. When we get to federal court in 1997, the question is: What rules apply? Do the old rules apply when Mumia was convicted in 1982 or do the new rules apply from 1996? We don't know yet but the best judgment of the legal scholars we've talked to, who've examined this and looked at what the court decided on June 28th, inclines them strongly to the belief that Mumia will have his case heard in federal court under the new rules. That's what we anticipate because it's a "jurisdictional" issue."

17th TWA flight 800 left JFK airport in New York City on a routine flight to Paris when it fell mysteriously from the skies into the Atlantic, killing all 230 passengers and crew members on board. Two weeks later, a pipe bomb went off at the Olympics, killing two and injuring more than a hundred. Before that a truck bomb killed numerous US troops at an airbase in Saudi Arabia. What did these three acts share? Nothing if not for the reaction in at the highest levels of government. By Wednesday, July 31st, key lawmakers reached agreement with the White House on a package of anti-terrorism measures that would give Clinton the expanded wiretapping authority he had asked for but nor received in the Anti-Terrorism and Effective Death Penalty Act. Introduced just days before Congress was to begin its summer recess, the measure would also tighten airport security and allow prosecution of suspected terrorists under federal racketeering laws. On Friday, August 2nd, the Clinton administration was handed a another setback in the House of Representatives when Speaker Newt Gingrich led Republicans in the formulation and passage of a new counter-terrorism bill . The bill passed almost unanimously on

Friday, cloaking the dispute in Congress. The new bill was thrown together by a House committee dominated by Republicans who made it clear that they would resist President Clinton's demands for enhanced wiretapping laws. In particular Clinton and his point man, New York Representative Charles Schumer, wanted roving wiretaps and an the ability to place wiretaps without a court order in emergencies. Roving wiretaps were rejected in the April Counter-Terrorism Act by conservatives who worry that liberals are planning a legal assault against armed anti-government militias. On Friday, morning newspapers were reporting that an extended anti-terrorism bill was dead, but before noon Speaker Gingrich was insisting that a bill would be sent to the Senate and on to Clinton for a signature before the summer recess began at the end of the day. Eventually, a 33 page bill providing money for airport security including bomb sniffing dogs as well as and security background checks on airport employees was passed in the House. Another provision of the new bill calls for airlines to cooperate with the FBI, developing new profiles as a basis for searching and questioning airline passengers. Similar profiles used by New Jersey police on Interstate

95 have been criticized for racist stereotyping of African American men who are often pulled over for no other reason then for driving a new or expensive looking car. The new bill also leaves out any meaningful plan to introduce so-called taggants or tracers in several forms of gunpowder. Despite Democratic assertions that gunpowder should be tagged because it's the favored explosive in pipe bombs like the one that went off at the Olympics, Gingrich and his allies in the National Rifle Association are against forcing manufacturers to make it easier for the government to trace these common explosives. The NRA has the ear of Gingrich and House Republicans and had limited the gunpowder taggant measure to a limited study of the technology. Although it was passed in the House, the bill foundered in the Senate when Democrats withheld support because of the absence of language allowing roving wiretaps and Gingrich's refusal to open up the process. Later, Gingrich said the FBI's willingness to hand over 900 background files, including those of prominent Republicans, was a "major factor in stopping us from being able to give them the wiretap authority they seek." Gingrich said FBI director Louis Freeh "is running a grave danger of weakening the Federal Bureau of Investigation's standing."

Another part of the House bill would have forced Clinton to implement provisions in the April Counter-Terrorism Act requiring the White House to name so-called terrorist organizations. Clinton has yet to make determinations of these groups, which would then trigger some of the most egregious aspects of the Act prohibiting support of liberation struggles by activists in the United States. This provision in the new bill was reiterated by Gingrich at a news conference on August 2nd, where the speaker accused Clinton of focusing on wiretapping and taggants at the expense of "human intelligence" or spying and covert actions by the CIA. Democrats in the House said they were outraged by Gingrich's statement and they vehemently denied that Clinton has given short shrift to dirty tricks by the intelligence community. Despite the resistance of conservatives to some so-called anti-terrorist measures, the issues of taggants and roving wiretaps will be discussed again when the House return from summer recess after the conventions. Numerous other bills have also been passed that allow the FBI to spy under "good faith" exemptions to laws requiring court orders for electronic surveillance and search warrants. Without a doubt many freedoms taken for granted by generations of Americans are gone for good and a brave new world is upon us.

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