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Grassroots Opposition to Rights-Infringing Antiterrorism Tactics:
Why the ACLU's Model Resolution Is Dangerous and Should Be Revised


Friday, Sep. 12, 2003

It is now the second anniversary not only of the tragedies of September 11, but also of the war on terrorism. A recent Associated Press poll found that most Americans do not feel that their freedoms have been eroded by the new laws and tactics being employed to fight terror. However, some two-thirds of those polled were "somewhat or very concerned" that their freedoms could be imperiled in the future by anti-terrorism tactics.

The AP poll discovered that the Americans most concerned about the loss of freedoms are "the most affluent, the highest-educated, Democrats, and blacks." In other words, they are those with the most to lose, those who are aware of our history, those who are naturally suspect of Republican law enforcement, and those who have often been denied their rights and liberties because of the color of their skin.

From the ranks of these Americans, a real challenge to the war on terrorism's most extreme tactics - and their willingness to trample on the Bill of Rights - has emerged. This grassroots movement is democracy at its best.

However, I believe the movement has made some serious mistakes, and risks making more - and as a result, it has left itself open to potential charges that may distort, and thereby disrupt, its important work. I'm hopeful that discussing a few of these problems openly can help solve them.

The Movement Begins: Ann Arbor, Michigan's Resolution

This movement started when residents of Ann Arbor, Michigan learned of the arrest and detention of certain Arab-American and Muslim men, who were denied bond and open hearings. They saw that non-citizens were being treated radically differently than Americans. And because they have a Bill of Rights Defense Committee in Ann Arbor, they knew that this was unconstitutional.

So by January 20, 2002 the city's fathers and mothers of Ann Arbor passed a resolution. They rejected "racial profiling" of any group within their community. They also called on the Federal Government to "act in a fair, open and consistent manner" that assured "all individuals" are afforded "due process." They sent copies of their resolution to their congressional delegation, attorney general John Ashcroft, and President Bush.

The Movement Widens: More Resolutions, and a Coalition

Soon other towns, cities, counties and states adopted similar resolutions. Today, according to the American Civil Liberties Union - which is both leading and monitoring these resolution on its website - "resolutions have been passed in 162 communities in 28 states including three state-wide resolutions. These communities represent approximately 19.3 million people who oppose the USA PATRIOT Act." It appears these resolutions of resistance are continuing and growing, as more people become concerned about anti-terrorism tactics.

This fall, a broad based coalition of support groups (from the ACLU to People for the American Way), is sponsoring a Grassroots America Defends the Bill of Rights National Conference on October 18-19,2003 in Silver Spring, Maryland. This conference seeks to further the cause of protecting civil liberties.

With President Bush's latest request for even more aggressive additional tactics, this public challenge is likely to grow.

Attorney General Ashcroft's Opposition to the Grassroots Movement

Attorney General John Ashcroft, however, opposes this movement. Ashcroft is a well-meaning, hard-working man, but at the same time, a very dangerous one. He should have, framed on his desk, Supreme Court Justice Louis Brandeis's great statement from Olmstead v. United States:

"Experience should teach us to be on our guard to protect liberty when Government's purpose are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment of men of zeal, well meaning but without understanding."

In the aftermath of September 11, Ashcroft rounded up thousands (some say 8000) Arab-American and Muslim men, for secret trials and deportation. The dragnet eerily echoed Attorney General A. Mitchell Palmer's overreaction to the threat of communism following World War I. Palmer, with his young assistant J. Edgar Hoover, rounded up 3000 "radicals" and "Bolsheviks."

The Dangers In Recommending Resistance To Federal Laws

While I have not checked all among the resolutions (there are some 160 of them), I have looked at many - and have observed the steady trend toward making them tougher and tougher. Even the sample resolution offered by the ACLU - on which I will focus my critique - is problematic. The ACLU deserves much credit for its vigilance on this, as with other encroachments on our civil liberties. But in this instance, it may have gone too far.

The ACLU sample resolution urges that city councils direct the city's police department to "refrain from participating in the enforcement of federal immigration laws." But that is arguably obstruction of justice, a criminal violation - and Ashcroft is likely to charge it as such.

To "refrain" means to "forbear" - or to "abstain," "avoid doing," "cease," and "desist." On its face, then, this proposed clause directs local police, based on instructions from their city council, to tell the Bureau of Immigration and Customs Enforcement investigators or officials to buzz off, and get lost - because they have been "directed" not to participate in the enforcement of the federal immigration law.

BIC (formerly INS) has recently been moved from the Department of Justice to the Department of Homeland Security, and since September 11, has been involved in a widespread crackdown - often deporting aliens based on technical immigration violations that previously would not have been punished that way.

BIC - when attempting to deport an illegal alien, and even perhaps a confirmed terrorist, will be very unhappy if local police do not comply. So will the Attorney General.

Thus - especially if the perfect test case for the resolutions, involving a true terrorist, arose - nonparticipation by local police in BIC enforcement could lead to obstruction of justice charges not only against the police, but against the city council members. And what jury, in this day and age, will refuse to convict those who dragged their feet when a true terrorist needed to be deported from our shores?

Obstruction of Justice Is Defined Broadly, and Could Apply to Noncompliance

As a result, the ACLU should pay closer attention to obstruction of justice law, and rephrase its model resolution so that it does not fall awry of it. Currently, the ACLU's recommended resolution - at the very minimum - skates dangerously close to the legal edge, if not over it.

Noncomplying police would have to be aware of the pending proceeding to be charged. That won't be hard to prove, though: BIC will tell them of the proceeding, and if it's wise, will call up the City Council and tell its members about it too. If, after that, they still resist cooperation with law enforcement, it's possible that an obstruction of justice claim might be brought.

The Intent Standard: Civil Disobedience Still Can Count as "Corrupt" Intent

In addition, the government would have to show that the city official or police office "corruptly" obstructed, or tried to obstruct, the proceeding or investigation. Under federal law, to do an act "corruptly" is to act "with an improper purpose, personally or by influencing another."

This intent standard is very broad, and does not accord with our everyday intuition as to what is, and is not "corrupt." One can do an act "corruptly" even if one believes the relevant proceeding is improper or unjust.

Thus, while there must be at least some First Amendment defense to certain applications of the obstruction statute, First Amendment concerns do not shape the intent requirement. A protesting person whose object is mere nonviolent resistance can be an obstructer of justice in the eyes of federal law. Though pure of heart, the person may be deemed to act "corruptly" under the law.

Most of those who fail to cooperate in federal law enforcement know that their actions may result in delay or difficulty for federal agents - after all, wouldn't cooperation expedite things? If not, why withhold it? Unfortunately, that knowledge, too, is arguably "corrupt" intent - for delaying or impeding the enforcement of federal law is arguably itself an improper purpose.

More obvious resistance, meanwhile, would also likely fulfill the corrupt intent requirement. Refusal to turn over a foreign national in the custody of the local police to the BIC has the predictable effect of making BIC proceedings impossible to conduct. (Even the BIC does not like to rule in absentia.) Refusing to provide requested, or subpoenaed information, too, will obviously hamstring an immigration proceeding.

Moreover, if there is evasion or deception involved - even of the most minimal kind - it will be even easier for the government to show improper purpose. Do local police fail to answer calls from BIC, falsely claiming they were unavailable? Do City Council members falsely claim they failed to read faxes sent to them apprising them of the federal investigation of a person within the city? If so, they will be in greater trouble still.

The ACLU Must Revise Its Model Resolution Before It Is Too Late

Zealots on the hard right are likely to claim that cities that adopt such resolutions provide protection for terrorists. Obviously, it's an absurd charge, but that won't stop it from being made.

The ACLU draft resolution does make clear - in its numerous "whereas" clauses - that this is not at all its intention. But it could do more to this effect. Indeed, frighteningly, terrorists themselves might misread this and similar resolutions - and head for towns or cities that have adopted them, thinking they have a safe haven there.

Other Clauses of the Model Resolution Should Also Be Revised

That brings me to the other clauses of the model resolution - in addition to the one that calls for no cooperation in enforcing federal immigration laws. These can be grouped into a few categories.

The first category relates to police searches, seizures and surveillance. The model resolution calls for the police to refrain from surveillance of people participating in activities protected by the First Amendment (freedom of religion, speech, press, assembly and petitioning their government). It also calls for them to refrain from racial profiling in all instances and - unless there are grounds to suspect criminal conduct - from video surveillance, and from collecting information about political, religious, social views.

In general, these clauses relate to decisions that it is within cities' purview to make - unless federal or state authorities ask them to do what the resolution prohibits them from doing. (In that case, the "noncooperation" provision will be directly implicated, and my prior discussion of the risk of criminal charges will apply.)

But other clauses actually call upon police to violate federal law. Giving notice of the execution of any search warrant is contrary to federal law that allows searches to be done without notice in certain cases. The clause that calls on police to refrain from enforcing programs that encourage the general public to spy on others seems to be an reference to the TIPS program - and if the program were implemented, would also call for a violation of federal law.

Meanwhile, the resolution also has a reporting provision that, while it does not violate the law, does pit city government directly against the federal government. The calls on police to report to the city council any Federal requests that would cause the city to proceed contrary to any city ordinance - presumably including the resolution itself - or the U.S. Constitution. (Such requests might well be made pursuant to the USA Patriot Act, as well as other federal laws, often dating from after September 11, that have never been tested before the U.S. Supreme Court).

In theory, this provision could simply alert the city council to instances in which it may want to litigate its compliance in court. But it is not phrased so innocently - rather, it seems such reporting will be a predicate to possibly illegal noncompliance, not merely to a court battle.

The ACLU needs to rethink and revise its model resolution sooner rather than later. It is irresponsible not to alert those who may adopt the resolution to which clauses call for law violation, and which do not. It is irresponsible not to explain the risk of federal criminal "obstruction of justice" prosecution.

And it is, I think, unwise not to make as crystal clear as humanly possible that the intent is to protect the Bill of Rights, and not in any way to protect terrorists. There must be a clear, unequivocal statement that nothing in the resolution seeks to undermine federal law enforcement officials when they comply with the Constitution and laws. In addition - it's obvious but crucial - there must be language making it clear that the city has no sympathy for terrorism, and will join in the fight against it while at the same time honoring the Bill of Rights.

This grassroots movement to respect the Bill of Rights even in the midst of the war on terrorism, is too important to make mistakes. I'm hopeful the ACLU will take a closer look at what it is recommending.

Going to jail for one's beliefs is one thing - and often an admirable thing. Going to jail because one did not understand one was arguably obstructing justice, however, is very different. Protesters within city government, or on the street, can be more effective than they would be in a jail cell. And no one should end up in jail for civil disobedience due to a trap for the unwary.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

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