House 9/11 Commission Bill Includes Patriot II, National ID Card, Worst Anti-Immigration Measures in Decade

Analysis by the Washington Legislative Office of the American Civil Liberties Union

FOR IMMEDIATE RELEASE
Contact: Media@dcaclu.org

WASHINGTON - In addition to additional law enforcement powers, like those granted in the original 2001 USA Patriot Act, the new bill in the House of Representatives to implement the recommendations of the 9/11 Commission would likely create what amounts to a national identification card, and would harm basic fairness in the nation's immigration system, the American Civil Liberties Union said today.

"Republican leadership is either trying to torpedo the 9/11 Commission's recommendations with a poison pill, or is attempting to muscle through a narrow policy agenda using must-pass legislation," said Laura W. Murphy, Director of the ACLU Washington Legislative Office. "Both scenarios are unacceptable."

At issue is the House version of legislation drafted in response to the recently completed 9/11 Commission. Though the commission notably did not include any recommendation that the Patriot Act be extended, or that due process and judicial review in the immigration system be curtailed, House Republicans included such provisions anyway.

The inclusion of some parts of the Patriot II legislation is drawing increasing criticism, especially after a group of 9/11 widows appealed to lawmakers this week to not let such divisive provisions derail the bill.

"At no point during the entire life of the 9/11 Commission did it call for another Patriot Act or the enactment of a hard-line anti-immigrant policy," said Timothy Edgar, an ACLU Legislative Counsel. "One has to wonder, 45 days before a presidential election, why they're in the House bill."

The ACLU released the following brief analysis of the new material in the House bill, which is not exhaustive and will be updated with discussion of those sections in the bill that were prompted by recommendations from the 9/11 Commission.

Patriot II and National Security Generally

Broadened Intelligence Surveillance on American Soil (Section 2001)

- The House bill contains the so-called "lone wolf" bill, which would remove the requirement that the non-citizen targets of secret intelligence surveillance and searches be somehow connected to a foreign power. Currently, secret intelligence court orders, issued under a far lower standard than criminal investigative tools, are applicable to any national entity or international terrorist group. The House bill would allow the definition of "foreign power" to apply to one person, acting alone, undercutting the entire purpose of having secret intelligence powers in the first place.

Proponents of the change argue that it is needed because the FBI did not have sufficient power to investigate Zacarias Moussaoui before 9/11. Congress' own investigation, however, found that the FBI simply misunderstood the legal standard for conducting such surveillance, which was clearly available to the bureau in that case.

"Military-Type Training" (Section 2042) and Mere Association Made a Crime (Section 2043)

- Broadly expands the offense of "material support" for terrorism, which, because of the vague definition of what constitutes "material support," has been a key issue in the controversy over the Patriot Act. The House leadership bill makes it a serious federal crime for any United States person to receive "military-type training" from a designated terrorist group. It would apply even to someone who has expressly disavowed any allegiance to the group, and who has never acted on the training.

The House bill also amends the crime of providing "personnel" as a form of support to a designated terrorist group to include providing oneself - 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.

Extremely Broad Employer Access to Arrest Records (Section 2142)

- People who are arrested, but never charged, indicted or convicted, should not have it held against them when trying to get a job. The House bill, however, gives employers easy access to such records. Even if the records come with a notice that the person has not been charged, indicted or convicted, employers are still very likely to take a mere arrest into account when making hiring decisions.

No Civil Liberties Watchdog (Various Sections)

- Even though its drafters included provisions not called for by the 9/11 Commission, they failed to include one of the single most important commission recommendations: the need for an independent watchdog for civil liberties with government-wide reach. The House bill seems content with isolated privacy officers in individual agencies, leaving broader oversight to the inter-agency board created by executive order earlier this month, which is chaired by senior Justice and Homeland Security Department officials and comprised of exactly the people a civil liberties board is meant to keep an eye on.

Immigration Issues

Several provisions would drastically overhaul the current immigration system to deny immigrants basic judicial review over unfair, arbitrary or otherwise abusive deportations. None of these policy changes were recommended by the 9/11 Commission and many have long been priorities for the hard-line anti-immigration lobby.

Attack on Habeas Corpus (Section 3006)

- The House bill would eliminate judicial review of some immigration deportation orders under the ancient "Great Writ" of habeas corpus by channeling virtually all immigration cases to the federal courts of appeals, where appeals in some cases are barred.

Traditionally available to any person, citizen or non-citizen, in the United States as a "safety valve" that allows one final appeal to challenge extreme injustices by the authorities, habeas review would be barred in certain cases involving, for instance:

• Challenges to removal where the deportee is likely to be tortured upon return.
• Attorney malpractice or incompetence. 
• Virtually all cases of the unlawful use of "expedited removal," which allows immigration officials to summarily deport certain non-citizens, including many who are already in the country, if they believe, for instance, that their documents are invalid. Practically, the change could mean that a refugee from the genocide in Sudan who arrives without proper documentation could be sent back without any hearing.

The House bill attempts to provide a fig-leaf of judicial review in the courts of appeals for what it calls a "pure question of law" or constitutional claims, but with such a narrow standard of review, many with legitimate appeals would be without recourse. With no habeas corpus "safety valve," federal judges could be left helpless in such cases to correct arbitrary or unlawful action.

Deportation Before Final Appeal (Section 3009)

- The bill would set an extraordinarily high bar for courts to meet before granting "stays" of deportation, even while a deportee's appeal is pending. Effectively, this section will render those appeals moot in many cases, because the non-citizen will have already been deported.

Deportation to Countries Without a Functioning Government (Section 3033)

- The consent of a government to accept a person being deported there is a basic principle in international law. To do otherwise would subject many deportees to extreme human rights violations, torture and even death. The House bill would remove that requirement, allowing the government to deport a person to any country that does not "physically" resist his or her entry. Currently, the Supreme Court is actually set to render judgment next year in a case on exactly this issue (Jama v. INS, involving a deportation order to Somalia, a country with no effective government). The House bill is a ploy to preempt the decision.

Prohibition on Federal Acceptance of Matricula Consular (Section 3005)

- This provision would implement another top priority of right-wing anti-immigration groups, which has repeatedly failed to gain any traction in Congress or the federal agencies. The "matricula consular" is an internationally recognized form of identification, similar to the identity documents issued by American consulates to citizens living abroad. It is often the only piece of identification available to certain immigrants. The House bill would bar the federal government from recognizing matricula cards as valid identification.

Asylum Claims Made More Difficult (Section 3007)

-- Currently, asylum seekers need only show they face persecution based in part on race, religion, nationality or membership in a certain social group. The current law would require one of these criteria to be the "central motive" behind the persecution. This is a significantly higher burden to meet for any asylum claimant who will suffer persecution based on a mixture of these factors, or who will suffer harm that is related, but not directly so, to one of these factors (for instance, an opposition party politician who faces arrest on trumped-up charges).

The section would also allow a judge to require asylum seekers to "corroborate" their claim of persecution, and lowers the ability of other courts to overturn a denial of asylum based on the ruling judge's demand for corroboration. This is a significantly higher hurdle for asylum seekers, who often lack any ability to prove their claim through anything save their own testimony (imagine, again, a hypothetical Christian refugee who escapes Darfur only by the skin of her teeth). Not surprisingly, asylum-seekers have difficulty obtaining corroborating documents from the very government that is persecuting them.

National Identification

Uniform Driver's Licenses (Section 3051 to 3056)

- Though it remains unclear just how broad the section dealing with uniform standards for driver's licenses would be, it still raises serious concerns about whether it would create a de facto national identification card. After three years from the date of passage, the federal government would be unable to accept a state driver's license as proof of identity, unless it conformed with certain minimum requirements. More troubling, however, is that the bill would require state motor vehicle databases to be linked together.

Registered Traveler Program (Section 2183)

- The bill requires the Transportation Security Administration to expedite the "registered traveler" program, which will allow pre-screened passengers to avoid certain security measures. There are two main problems with the initiative: a) getting a terrorist through the pre-screening is going to become priority number one for groups like Al Qaeda, and b) minorities and lower-income Americans, who tend to have poorer credit and are less likely to be have a record showing roots in a particular community (a key criteria in gauging trustworthiness), are going to have a more difficult time getting registered, creating a two-tiered security system.

An ACLU memo with more detail on the immigration provisions is available at:
/cpredirect/11797

For more information on the Patriot Act, see:
/patriot