The Bundled Amendments Have Nothing to Do with the 9/11 Commission’s Recommendations

Dear Senator:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we write to express our opposition to Senate Amendment 312 (“S. Amdt. 312) filed by Senator Cornyn to S. 4, the Improving America's Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007.  S. Amdt. 312 bundles four injudicious proposals that the 9/11 Commission never recommended and, therefore, these amendments should not be added to this bill.

The amendment would: undercut two U.S. Supreme Court decisions; diminish the already limited opportunity for judicial review of visa revocations; and erect severe criminal penalties for charitable acts deemed as providing “material support” to the families and even those believe to have “associated” with terrorists under an overbroad and vague definition. We urge you to oppose cloture on this amendment.

Amendment #312 Undercuts Two U.S. Supreme Court Decisions Regarding Indefinite Detention.

Senator Cornyn’s amendment expands the constitutionally infirm practice of indefinite detention, which applies to non-citizens ordered removed from the United States whose countries refuse to accept them or who have no country because they are stateless.  S. Amdt. 312 undercuts the U.S. Supreme Court decisions by limiting judicial review of indefinite detention to the constitutionality of the basis of the detention or the conditions of detention, and by requiring that these claims may only be heard in the U.S. District Court for the District of Columbia.  As a result, claims about whether a non-citizen subject to indefinite detention is properly detained under the immigration laws would be cut off. The closing of the courtroom door is another attempt to circumvent the Constitution’s Due Process Clause.

In Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005), the U.S. Supreme Court held that the immigration service does not have the authority—outside of a judicial process—to impose indefinite detention, what is effectively a life sentence, when the person cannot be repatriated through no fault of their own to their country of origin.   Neither case prevents the U.S. from detaining terrorists. Nor do these cases prevent the government from imprisoning criminals through normal criminal detention

Indefinite detention shocks the conscience by betraying our core constitutional values.  It is grossly unfair to detain a person forever just because DHS cannot deport them.  Congress should comply with the U.S. Supreme Court rulings and end, not expand, indefinite detention.

Amendment #312 Strips Away the Already Limited Opportunity for Judicial Review Of Visa Revocations.

Senator Cornyn’s amendment virtually eliminates the last option for judicial review of wrongful visa revocations. Currently, judicial review of visa revocation is permitted in the context of removal proceedings if the revocation is the sole ground for removal (22 CFR 42.82).  Amendment #312 broadens the restriction on judicial review of visa revocations by eliminating this very narrow safeguard under current law. 

This provision has serious consequences for anyone inside the country with a visa because it would allow the government to essentially revoke the visa without giving the individual any right to challenge the revocation.  A comprehensive look at this issue is beyond the reach of this letter.  Yet the government recently demonstrated its zeal for revoking visas for dubious reasons when it denied a visa to Tariq Ramadan, a Swiss intellectual who is widely regarded as a leading scholar of the Muslim.  In January 2004, Professor Ramadan was offered a tenured position as the Henry R. Luce Professor of Religion, Conflict and Peace-building at the University of Notre Dame’s Joan B. Kroc Institute for International Peace Studies.  Professor Ramadan was granted a specialized nonimmigrant visa on May 5, 2004, but on July 28, just nine days before Professor Ramadan and his family were to move to Indiana, he was informed by the United States Embassy in Bern, Switzerland, that his visa had been revoked.  At a press conference on August 25, 2004, Russ Knocke, a spokesman for the Immigration and Customs Enforcement division of the Department of Homeland Security, cited the ideological exclusion provision as the basis for the revocation.  The ideological exclusion provision applies to people that endorse terrorism, but the government has applied it much more broadly to people that have criticized the Administration. 

In June 2006, in AAUP v. Chertoff, 06 Civ. 588, United States District Judge Paul Crotty for the Southern District of New York issued an order soundly rejecting the government’s contentions, holding that, “[w]hile the Executive may exclude an alien for almost any reason, it cannot do so solely because the Executive disagrees with the content of the alien’s speech and therefore wants to prevent the alien from sharing this speech with a willing American audience.”

Judicial review of visa revocations is essential to ensure there are avenues for correcting overzealous government behavior when the government mistakenly denies or revokes a visa.  After all, mistaken immigration decisions, including wrongful denial and revocation of visas, are routinely corrected by judicial oversight. 

Amendment #312 Establishes Severe New Criminal Penalties for Charitable Actions Deemed to Provide ‘Material Support” Under An Overbroad And Unjust Definition.

Senator Cornyn’s amendment creates new crimes and seeks to heap additional penalties on those individuals who provide humanitarian or charitable assistance to groups the State Department lists as terrorist organizations, or that the U.S. government later deems to be terrorist organizations.  Because of the sweeping language of this amendment, even those who gave assistance to the widows or orphans of terrorists or to individuals who “associated” with terrorists, could be subject to significant criminal penalties.  Amendment #312, mandates strict penalties for charitable acts deemed to be ‘material support’ even where that support was  truly minor or deminimis.  Thus, the amendment seeks to criminalize based on family and friendship connections. The Senate should not enact such overbroad and vague legislation, particularly when it has conducted no hearings about the impact it would have on legitimate charitable activity. Although this amendment would require the government to prove that an individual had the intent of providing material support, charities and individuals would be dissuaded from doing legitimate charitable work in war-torn areas – particularly in the Middle East and South Asia – and could find it virtually impossible to meet the burden of countering the government’s claims.

Sadly, the “material support” ground of inadmissibility is already being misapplied to individuals who are not terrorists, but are in fact the terrorists’ victims.  The U.S. government regularly uses the circumstances that cause refugees to flee their countries as grounds for denying them safety in ours citing a similar “material support”   provision in the Immigration and Nationality Act.  For example, many charitable organizations sought to provide humanitarian relief to victims of the tsunami that devastated Sri Lanka, where the Liberation Tigers of Tamil Eelam controlled many sections of the country.  But the tsunami did not differentiate between areas under opposition control and those controlled by the Sri Lankan government.  Fears of prosecution for material support of terrorism complicated the work of humanitarian organizations that must obtain the tacit cooperation of rebel groups to assist civilians in rebel territories.  

At a time when charitable organizations are already having great difficulty reaching those in need, this amendment further stifles humanitarian efforts by categorically increasing penalties for material support.  Congress should encourage humanitarian aid, not hinder it with harsh and inflexible penalties.

The ACLU strongly urges you to oppose cloture on the Cornyn Amendment #312 to S. 4, the Improving America's Security by Implementing Unfinished Recommendations of the 9/11 Commission Act of 2007.

Sincerely,         

Caroline Fredrickson,

Director, Washington Legislative Office

Timothy Sparapani

Legislative Counsel