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In Vietnam, most historians agree that America fought with one hand tied
behind its back. In the current war against terrorism, we may be doing
the same, but not because of our lack of political will. Instead, we
are constrained by our commitment to individual liberty and due process.
One illustration of this is our criminal law that prevents us from
convicting terrorists based on guilt by association. The U.S. declined
an offer by Sudan to extradite Osama bin Laden in 1996 because it lacked
sufficient evidence to convict him in a U.S. court. While bin Laden had
committed few, if any, terrorist acts at that point, we knew that he
was in the process of organizing a vast terrorist network.
Although we cannot change history, we face a similar quandary today.
Evidence may indicate that many of the hundreds of individuals in the
U.S. currently sought by the F.B.I. have general ties to bin Laden and
Al-Qaida, but there may be no proof that some of these individuals
participated in any specific acts of terror or even knew of them. This
is especially likely given the reports that bin Laden’s terrorist cells
operate largely independently to reduce the risk of an informant.
Unfortunately, our criminal laws may be inadequate to successfully
prosecute such individuals. In order to be convicted of conspiracy, the
defendant must have participated in planning a specific act, not merely
be a member of a group engaged in organized crime. To overcome this
difficulty and successfully prosecute organized crime units such as the
Mafia, the Racketeer Influenced and Corrupt Organizations Act (RICO) was
enacted in 1970.
However, for several reasons, RICO is inadequate for prosecuting people
who are simply members of terrorist groups. First, the defendant himself
must have engaged in a "pattern of racketeering activity." This has been
interpreted by courts to mean that the defendant himself must have
committed at least two underlying crimes. The fact that the defendant is
a member of a terrorist enterprise that has committed crimes is insufficient.
Secondly, in Reves v. Ernst & Young, the Supreme Court held that, in
order to be convicted under RICO, the defendant must participate in the
management or operation of the criminal enterprise. Thus, underlings
like Mohammed Atta who simply following instructions from bin Laden or
his lieutenants, may be exempt from RICO.
Finally, although RICO prohibits conspiracies, such a conspiracy occurs
only when the purpose of the conspiracy is to employ a pattern of
racketeering acts, or income derived from them, to acquire an interest
in an enterprise, or to conduct an enterprise's affairs. This is
inapplicable to most terrorists, whose goal is not to acquire or control
enterprises, but to destroy human life.
In addition to RICO, there is the Antiterrorism and Effective Death
Penalty Act of 1996 that states, in part, “whoever within the United
States or subject to the jurisdiction of the United States, knowingly
provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 10 years, or both.” This penalty
is probably too light but, more importantly, this Act does nothing to
allow for the criminal prosecution of a member of a terrorist network in
the United States who does not give financial support, but is simply
waiting for instructions.
This leaves several options. Most immediately, the U.S. could extradite
such individuals to their home country, especially if it is an Arab
regime friendly to the U.S. In these countries, they are not burdened by
our legalisms; they simply behead infidels and ask questions later.
However, Congress must take action to fill this gap in our criminal
laws. One approach would be to amend RICO or pass a new law stating that
being associated with a terrorist group is a prosecutable offense, even
if the defendant has not yet committed an underlying crime.
Contrary to conventional wisdom, there is nothing in the Constitution
forbidding guilt by association. While the First Amendment protects
freedom of association, the framers certainly did not mean to include
the freedom to be part of a criminal association.
Nevertheless, to avoid any First Amendment challenge, the legislation
could include a short grace period in which anyone in the U.S. who has
had past communications or associations with Al-Qaida or another
terrorist group would be required to contact authorities to explain
their involvement and tell all they know. Thus, the First Amendment
would not be an issue, as the actual crime would be not coming forward,
rather than associating with a terrorist group.
To be sure, there are dangers, such as if the definition of terrorist
groups was somehow excessively broadened to include, for example, a
generally peaceful anti-abortion group because one member happens to
bomb an abortion clinic. However, the State Department recently released
its updated list of 28 terrorist organizations. This list is based on
sharply defined criteria, making abuses unlikely.
Abraham Lincoln had to suspend habeas corpus and trample on some civil
liberties in order to preserve the union and end slavery. In this war
against terrorism on our own soil, we must not only make sure that our
hands aren’t tied; we must take the gloves off.
Marc Levin is Executive Vice President of the American Freedom Center
(www.americanfreedom.org), a Houston-based legal and public policy
research institute. He can be contacted at [email protected].
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