House Set to Nullify More Civil Liberties

by , October 08, 2004

Civil liberties and immigrant rights advocates say House Republicans are using legislation based on the 9/11 Commission’s recommendations as cover to implement a series of troubling, unrelated reforms condoning torture, limiting immigration and increasing surveillance of both non-citizens and citizens.

The House will vote on the 9/11 Recommendations Implementation Act this week. Opponents say the Republican leadership rushed the legislation to the floor without much time for debate or public input, just as Congress prepares to recess for a pre-election break.

In addition to overhauling national security agencies, as recommended by the 9/11 Commission, the legislation would also allow the U.S. government to deport immigrants to countries that allow torture, severely restrict asylum seekers, and compile a massive database of information on law-abiding citizens. The 9/11 Commission did not recommend any of these reforms, some of which were found in the Domestic Security Enhancement Act, commonly known as "PATRIOT II" – legislation so alarming, public outcry kept it from coming to a vote. Recently lawmakers in both the House and Senate have introduced legislation that would revive pieces of that controversial bill.

"The House is acting as a rogue group," Tracy Hong, director of policy for the National Asian Pacific American Legal Consortium, a civil rights and advocacy group. "They’re defying the 9/11 Commission."

House Republicans disagree, saying the bill would prevent terrorists from entering the U.S. In a written statement, House Speaker Dennis Hastert (R, Ill.), said the bill "will improve terrorism prevention and prosecution, so we can get the terrorists – and those who help them – before they get us. It will improve border security and make it harder for terrorists to travel to America. It will improve international cooperation and better coordinate anti-terrorism efforts with our allies."

Congressman F. James Sensenbrenner, Jr. (R, Wisc.), a leading supporter of the bill, also released a statement calling the bill "a firm, serious stand against terrorism," which will both protect civil liberties and make the country safer.

The Senate version, also expected to come to a vote this week, contains few of the extra provisions. If the House bill passes, the differing versions will be reconciled in committee.

The bill would allow the government to deport non-citizens who committed serious crimes or human rights violations to countries where they would likely be tortured. The provision appears to be in direct violation of the Convention Against Torture, signed by the U.S. in 1989, Article Three of which states: "No State Party shall expel, return … or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Erin Corcoran, staff attorney for Human Rights First’s asylum program, said violating the Treaty could put Americans at risk abroad. "If we can carve out exceptions, why can’t another country carve out exceptions?" she asked. "If you let someone torture someone, you’re condoning torture. If you don’t want an absolute ban, you shouldn’t have signed on to this convention."

The bill would also allow immigration officials to deport non-citizens to countries without a recognized government, unless the receiving country "physically prevents" the individual from entering.

The bill contains numerous other provisions affecting immigrants, particularly those seeking asylum. Under the proposed bill, most immigrants would be denied the right to remain in the U.S. while the federal courts review their case. Currently, individuals can apply for a temporary "stay of removal," typically granted to immigrants who appear to have a valid claim for asylum and would face torture or hardship if returned to their native country.

Corcoran said the provision could have drastic consequences for asylum seekers. If their claims of persecution are valid, she said, and they are returned to their country pending court review, "they are going to be dead or in prison."

Immigration officials would also be allowed to deport non-citizens who have been in the U.S. more than a year but less than five years, without any judicial or administrative review of their claims.

Hong said the legislation would result in the deportation of immigrants who have a legal right to stay, because there would be no opportunity to present an argument for remaining in the country. "Let’s just say [the immigrant is] married to a U.S. citizen," Hong said. "There would be no context for him or her to raise that issue."

The bill would also take away noncitizen immigrants’ rights to request a review of their case before the federal court. Immigrants seeking to challenge the decisions of immigration officials currently bring their case before the Immigration Court, then the Board of Immigration Appeals, and then by filing a writ of habeas corpus before the federal court. Under the proposed legislation, that final option would be eliminated.

Corcoran said the federal review is especially important because recent reforms by Attorney General John Ashcroft have drastically decreased immigrants’ chances of winning an appeal at the Board of Immigration Appeals level. "[The Board review] procedure has been gutted," she said. "The only place that most people are able to get relief and get asylum is the federal court."

In addition, the legislation would require asylum seekers to prove that their race, religion, political opinion, nationality or membership in a particular social group was the central motive for their persecution – a provision no other country requires, according to human rights advocacy group Human Rights First. Advocates say that proving a central motive for persecution is often impossible.

Corcoran said the legislation would make proving gender-based persecution especially difficult. "I think the best example is a woman being beaten by her husband," she said. "It’s probably for a lot of reasons – including that he thinks she is his property, but maybe also because he’s drunk or had a bad day at work." Cases like these, she said, would be difficult to win if the House bill passes.

The severity of the reforms has alarmed many advocates for asylum seekers and other immigrants, who say the changes will take away due process from some of the most vulnerable individuals in the legal system.

"[These provisions] weren’t included at all in the original 9/11 Commission report," said Michele Waslin, immigration policy analyst for the National Council of la Raza, the nation’s largest Hispanic advocacy organization. "Clearly the House Republicans are looking at this as a vehicle to pass anti-immigrant legislation."

Civil liberties activists say the legislation also contains disturbing provisions increasing government surveillance of law-abiding citizens. The Senate version would create an "Information Sharing Network," combining commercial and government information into a massive database, similar to the controversial Matrix system already rejected by most states.

Timothy Edgar, legislative counsel for the ACLU, said the legislation would also allow private individuals to access the data, with "no real protections for privacy." Edgar added that companies like Seisint, creators of Matrix, could attempt to sell their extensive databases to the government if the bill passes. Matrix came under scrutiny when state officials and civil liberties activists raised concerns about the safety of the data, which included everything from hunting and fishing licenses to photographs of neighbors and business associates.

The House version also contains sections originally found in a leaked draft of the controversial "PATRIOT II" legislation, including the "lone wolf" provision, which would allow the government to extend secret surveillance power, granted under the Foreign Intelligence Surveillance Act (FISA), to non-citizens who do not have a connection to a foreign power or terrorist group and without requiring investigators to show probable cause.

In joint testimony before the Senate Judiciary Committee last month, Assistant Attorney General Daniel J. Bryant and Barry Sabin, chief of the criminal division of the counter-terrorism section in the Justice Department, said, "[T]he reality today is that a terrorist who seeks to attack the United States may be a ‘lone wolf’ who is not connected to a foreign terrorist group, or someone whose connection to a foreign terrorist group is not known."

But in a counter testimony, Edgar, the ACLU counsel, said pre-9/11 laws are sufficient. He argued that the Justice Department has not been able to provide a single example of a case in which they were unable to obtain the surveillance power they needed either through existing criminal law or through a FISA warrant.

The House bill would also expand the definition of "providing material support" for terrorists and make it a federal crime for any U.S. citizen to receive "military-type training" from a group designated as a terrorist organization by the U.S. government. "Military-type training" is defined as training "in means or methods that can cause death or serious bodily injury, destroy or damage property, or disrupt services to critical infrastructure, or training on the use, storage, production, or assembly of any explosive, firearm or other weapon, including any weapon of mass destruction." The provision would apply to everyone who receives such training, regardless of whether they ever act on the training or renounce their allegiance to the group.

In addition, the bill would change the definition of providing personnel to terrorist groups to include providing oneself. In a written statement, the ACLU notes, "In other words, mere association or membership in the group can be a crime, even if no money or other resources are provided. It would apply even to a person that has nothing to do with the group’s violent activities and even to a member that is trying to persuade the group to give up violence and join the political process."

The bill would also allow employers to access potential worker’ arrest records. Although the records will come with a notice that the individual has not been charged, indicted or convicted, the ACLU says employers are "still very likely to take a mere arrest into account when making hiring decisions."

Civil liberties and immigrant advocates say they hope many of the provisions will be removed, and are encouraging people to contact their senators and representatives to voice their concerns, but add that the legislation is expected to move quickly through the House and Senate this week, with little time for discussion.

Read more by Madeleine Baran