Colin Powell's List (Page 4)

In the past two years, two small but significant victories have been won. In the first, involving PMOI and NCRI, the two Iranian groups, a court ruled last summer that a listed organization has the right to present reasons why it ought not to be included. "The Anti-Terrorism and Effective Death Penalty Act makes no provision for notice that a group is being named, and no provision for a hearing," says Ronald Precup, a Virginia attorney who represents NCRI. But having the right to be heard guarantees little: The State Department, taking advantage of imprecision in the court ruling, has agreed not to an actual face-to-face hearing but simply to accept written data challenging the designation. That process, begun last summer, was put off after September 11 and is proceeding only slowly.

Second, in October another court ruled that the 1996 law violated the Constitution when it included training and personnel among the things US citizens and residents may not provide to listed groups. (The law defined material support to include "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religious materials.") That means that sympathetic groups could, for instance, provide listed organizations with training in legal advocacy or in representing their group before the United Nations, says David Cole, a Georgetown University law professor who argued the case on behalf of the Humanitarian Law Project, a California-based human rights group.

Both Precup, on behalf of NCRI, and Bernabei, on behalf of 32 County, are seeking the full release of the administrative records compiled in the two cases, but that seems unlikely. Precup plops a three-inch-thick stack of papers onto a table--the unclassified version of the record used to list NCRI. It contains reams of publicly available clippings and even a speech by President Clinton, along with swaths of blacked-out material that the Iranian groups are forbidden to see. Meanwhile, PMOI and NCRI are being targeted by law enforcement: In December two dozen FBI agents with weapons drawn raided the home of an Iranian activist affiliated with the organizations at 4:30 am, seizing a number of computers and stacks of documents, including lawyer-client materials. The warrant for the raid was supported by an affidavit, but the affidavit, like the evidence, is secret and classified.

In one of the first cases brought against people for providing material support to a listed organization, in February 2001 the FBI arrested seven alleged PMOI members for soliciting funds in the Los Angeles area. In another Kafkaesque twist to the terrorism law, those charged with violating its terms are prohibited from challenging their arrests on the grounds that the listed group is not a terrorist organization. "A defendant in a criminal action shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing," reads the law. That's true even if the funds gathered were intended for charitable or humanitarian uses, which gives pause to donors who might consider supporting any one of a number of causes in the Third World. "The chilling effect of these laws is substantial," says Cole.

The newer lists, yet to be challenged in court, have raised other troubling questions. The Treasury Department's list, carrying severe financial consequences, doesn't even require the compiling of a record of evidence, just a determination by the department that the target belongs on it. Ditto for the so-called terrorism exclusion list, aimed at noncitizens. "There are a million and one questions about this new list," says Chang of the Center for Constitutional Rights. "It can include domestic as well as foreign groups."

The government's antiterrorist list-making is, of course, just one component of the War on Terrorism, a war the White House pledges will go on for many years to come. Whatever its chances for success overseas, at home it has already succeeded in undermining civil liberties to an alarming degree--from the government's new surveillance and detention powers to military tribunals, the use of the armed forces for domestic law-and-order duties, and stepped-up monitoring of political groups by both the FBI and CIA. Powell's list--and all the other lists--are bringing America a little closer to the point where it will be illegal to disagree about what our country's foreign policy ought to be.

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