Friday, March 27, 1998; Page A24

THE ANTITERRORISM and Effective Death Penalty Act of 1996, which was passed to strengthen federal law enforcement's hand against terrorists, contained numerous sections that offend basic civil liberties. From gutting habeas corpus rights to expanding the use of secret evidence in deportation proceedings, the law was a real setback for civil liberties and should not have been passed. Recently the Center for Constitutional Rights filed suit in California on behalf of a group of plaintiffs seeking to have key provisions of the law thrown out as unconstitutional.

Ironically, the provisions at issue in the suit are among the relatively few in the law that actually merit some public sympathy. The sections seek to restrict domestic fund-raising for foreign terrorists by making it a crime to offer "material support" to those foreign groups that the secretary of state designates as terrorist organizations. Previously the law banned only support for terrorist activity itself, meaning that Americans could aid foreign groups that engage in violence as long as they supported only their lawful activities. Many terrorist groups, after all, do various types of social service work in addition to blowing things up, but the money is fungible. Any dollar that a terrorist doesn't have to spend running a hospital is freed up for other, less savory conduct. The rather reasonable goal of the legislation was to prevent terrorists from raising money under the guise of these legal activities.

But the fact that the law has a legitimate policy objective behind it does not make it constitutional, and the new case highlights the potentially serious constitutional deficiencies of the fund-raising ban. The plaintiffs are several people and groups in this country who wish to provide support for the lawful activities of the Liberation Tigers of Tamil Eelam and the Kurdistan Workers Party -- both of which are on the State Department's list of designated terrorist groups. Courts have long held that association with organizations that use both legal and illegal means to achieve political goals is constitutionally protected as long as that support is not designed specifically to further the illegal ends.

While the Supreme Court has never held that this principle applies to foreign terrorist groups, a recent appeals court decision the government is currently asking the high court to review suggests that it does. The new law is also harmed by its own inconsistency. It does not ban support for all groups that engage in terrorist activity as defined in federal law, only those the secretary of state deems at odds with American security or national interest -- giving the government the power to pick and choose which violent causes Americans are allowed to support. So, while American citizens cannot raise money for Hamas or the Tamil Tigers, they still can raise money for the Irish Republican Army, which is not currently on the State Department's list.