As one key provision of the USA PATRIOT Act – a central plank of the Bush administration’s "war on terror" – was being ruled unconstitutional, some federal politicians were using reform of the country’s intelligence community as a vehicle for enacting parts of "PATRIOT Act II."
Intelligence reform was a principal recommendation of the so-called 9/11 Commission, and the Senate last week passed bipartisan legislation that closely followed the body’s recommendations. But the version devised by Congress’ other body, the House of Representatives, added a number of new provisions critics say are actually elements of a "PATRIOT II" proposal, and threaten civil rights.
The House bill includes an amendment to allow the government to detain foreign terror suspects and deport them to countries known to practice detainee torture once the State Department has received assurances they would not be harmed in those nations.
Representative John Hostettler, author of the amendment, said it would "protect the American people from dangerous aliens." But a fellow member of President George W. Bush’s Republican Party, Rep. Christopher H. Smith, said the bill would result in "bona fide refugees being returned to their persecutors."
Washington-based advocacy group Human Rights Watch (HRW) said the measure "undercuts U.S. commitments to vulnerable populations, and it does so disingenuously by dressing up its proposals in the language of terrorism, when in fact many of its provisions have nothing to do with terrorism."
"Instead, the bill will put populations of immigrants, such as refugees and persons without any links to terrorism, at risk of serious abuse," added HRW in a statement.
According to the American Civil Liberties Union (ACLU), the amendments "additionally detract from the findings of the 9/11 Commission and expand PATRIOT Act powers and further scapegoat immigrants."
The House deportation provision would in effect provide statutory authority to a practice already widely used by such agencies as the Central Intelligence Agency (CIA). Known as "extreme rendition," it involves turning people in custody over to countries whose prisons are known to engage in torture.
At present, "extreme rendition" is carried out under the authority of a presidential order, known as a "finding." The last such order was signed by former President Bill Clinton.
The CIA has repeatedly claimed it receives assurances from receiving countries that prisoners will not be abused. But a number of deportees allege they were tortured while in detention in other countries, and some are now suing the U.S. government.
For example, Canadian computer engineer Maher Arar was detained in New York after arriving on a flight from Tunisia. U.S. agents deported him to Syria, the country of his birth, where Arar charges he was tortured for the 10 months he was imprisoned there.
Now back in Canada, Arar is suing the U.S. government. He was not charged with a crime, either in the United States or in Syria.
In another similar action, the CIA and Swedish security forces allegedly kidnapped two Egyptian nationals who were seeking asylum in Sweden, flew them in a CIA-chartered aircraft back to Egypt, where they were imprisoned and say they were tortured.
As reported by The Washington Post, former CIA Director George Tenet said the agency participated in more than 70 renditions in the years before the Sept. 11, 2001 terrorist attacks. In 1999 and 2000 alone, the Post said, "the CIA and FBI participated in two dozen renditions."
Other human rights advocates, including U.S.-based Human Rights First, say the deportation provision "contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted this spring that the United States would stand behind the UN Convention Against Torture."
In that scandal, photos showing naked, hooded Iraqi prisoners being humiliated and abused by U.S. soldiers were leaked to the media, generating an international outcry. Charges have since been laid against low-ranking soldiers, but critics say the go-ahead for abuse came from senior members of the Bush administration.
If adopted, the House measure could result in the torture of hundreds of people now held in the United States, who could be sent to such countries as Egypt, Saudi Arabia, Yemen, Jordan and Pakistan, all of which have dubious human rights records, adds Human Rights First.
However, many observers feel the House and Senate versions of the intelligence reform legislation are too far apart to be reconciled by a House-Senate committee, in which case both versions of the law would have to be reintroduced later.
The House debate took place soon after a federal judge struck down one of the key provisions of the PATRIOT Act.
U.S. District Judge Victor Marreo ruled in favor of the ACLU, which challenged the power of the Federal Bureau of Investigation (FBI) to use the Act to demand confidential financial records from companies without court approval, as part of terrorism investigations.
The ruling was the first to reject any of the new surveillance powers authorized by the PATRIOT Act, which was passed with little debate in the chaotic days following the 9/11 attacks.
Among other powers, the Act gave the government authority to monitor phones or computers used by a suspect or target of a special Justice Department warrant, and allowed the detention of non-citizens without formal charges.
PATRIOT Act II, known as the Domestic Security Enhancement Act of 2003, has never been introduced in the Congress. However, a leaked Justice Department draft refers to expanded surveillance and prosecutorial powers, including secret arrests and detentions, and the ability to issue top-secret Foreign Intelligence Surveillance Court warrants to include U.S. citizens suspected of terrorist activities.
Marreo’s decision struck down Section 505 of the PATRIOT Act on grounds that it violates free speech rights under the First Amendment to the U.S. Constitution, as well as the right to be free from unreasonable searches, in the Fourth Amendment.
The Act also bars companies and other recipients of subpoenas from revealing that they have received the FBI demand for records. Marreo held that this permanent ban was a violation of free speech rights.
The Justice Department has not yet said if it will appeal the rulings, but legal experts believe an appeal is probable.
The verdicts were the second blow to the Bush administration’s anti-terrorism policies. In June, the U.S. Supreme Court ruled that terror suspects being held in U.S. facilities like Guantanamo Bay, Cuba, have a right to use the U.S. judicial system to challenge their confinement, defeating the president’s assertion he holds sweeping powers to hold "enemy combatants" indefinitely.
