ACLU Statement Submitted by Timothy Edgar, Legislative Counsel, at a Citizen's Forum on Civil Rights and Civil Liberties After September 11, 2001 Before Rep. John Conyers, Jr., Ranking Member of the House Judiciary Committee

Document Date: October 13, 2004

Congressman Conyers and citizen chairpersons,

I am very pleased to appear before you today on behalf of the American Civil Liberties Union and its more than 400,000 members to discuss state of our civil liberties since the terrible attacks of September 11, 2001.

I will focus my statement today on the latest threats to our liberty in the extraneous and unnecessary expansions of the USA PATRIOT Act and the mean-spirited anti-immigrant wish-list that members of this Congress are trying to rush into law in the short time that remains before the elections.

Both houses of Congress have now passed legislation reacting to the recommendations of the 9/11 Commission. Unfortunately, the bill that reaches President Bush’s desk is likely to go far beyond those recommendations – and, in some cases, even defying those recommendations – by expanding the USA PATRIOT Act and attacking the fundamental rights of immigrants. The House bill includes the most significant expansions of the Patriot Act that have been considered by Congress in three years.

The House bill would sever a constitutionally-vital limit on secret “national security” wiretaps – the requirement that a secret court find that the target is acting for a foreign government or group. Already, more secret wiretaps are issued by this court than by all other courts in the United States – combined. While the provision is limited to non-citizens, if it is upheld, it will certainly be expanded to include citizens.

The House bill will amend the controversial “material support” law – that already makes it a crime to give money to the charitable activities of a group that the government labels a “foreign terrorism organization” – to make mere membership in an organization a crime for the first time in American history.

The House bill provides a presumption that relieves the government of having to show a terror suspect is dangerous or likely to flee if the suspect is charged with terrorism – even though many persons the government has accused of terrorism have proven innocent.

The House bill will more than double the number of federal death penalties for crimes listed as terrorism offenses, from 20 to more than 40, whenever death results. Crimes like material support of the lawful activities of a banned organization, financing of terrorism, and damage to a federal building will now carry a potential death sentence that prosecutors can use when they can’t prove more serious crimes, like hijacking, arson, or bombing, that already carry the death penalty.

The House bill also includes the most anti-immigrant legislation Congress has seen in a decade. Efforts to strip away these mean-spirited, extraneous provisions fell just a few votes short when House leaders pressured their colleagues to go along with the wish list of Tom Tancredo of Colorado, head of the “Immigration Reform Caucus” and the most anti-immigrant member either House of Congress.

Unfortunately, rather than sticking to intelligence reform, House leaders gave in to Mr. Tancredo’s demands for measures so extreme that they turned key supporters of intelligence reform against the bill.

As they had done with provisions of expanding the Patriot Act, members of the 9/11 Commission urged lawmakers to take the immigration changes out of the bill, saying they never recommended diminishing basic rights.

While White House said it wanted some provisions removed, Republican leaders say a key provision authorizing the government to send non-citizens to countries that a judge says would torture them was being pushed by the Bush Administration quietly before the White House issued its public denial.

Unfortunately, the so-called “compromise” that was adopted on the torture provisions approves indefinite, and potentially life-long, detention not just of terror suspects but any immigrant the government says is “specially dangerous” – with no court review. And immigrants can still be sent back to be tortured, if the Secretary of State gets “diplomatic assurances” from the thugs who run Syria or North Korea.

The immigration provisions go far beyond those allowing terror suspects or others the government says are dangerous to be sent back for torture or to be indefinitely detained.

A new “note from your persecutor” provision requires people fleeing persecution to provide documents to “corroborate” their claims when asylum officers or immigration judges say so – and severely limits the federal courts from deciding whether requiring such documents is reasonable. Not surprisingly, dissidents are often unable to get such documents from the governments they are fleeing.

Summary deportations, without any hearing or judicial review, could be expanded from the airports and a few narrow situations to cover any person an immigration agent says was in the country for less than five years.

If House provisions are accepted, the federal courts will see their power to stop arbitrary or illegal actions by the immigration authorities eroded in cases having nothing whatever to do with terrorism. The legislation would explicitly suspend the writ of habeas corpus – a “safety valve” in the legal system available for centuries under our legal system to any person, citizen or non-citizen – for some immigrants. Habeas corpus is meant to be a last resort, a final appeal to challenge extreme injustices by the authorities, and has not been suspended since the Civil War. The House proposals would prohibit the use of this safety valve precisely when it is most needed.

A basic principle of international law is that a country must receive the consent of another nation before deporting someone. Otherwise, the deportee could face human rights abuses, torture or death upon return. The House proposals remove this requirement, and allow the U.S. government to deport people to any country that does not “physically” resist their entry, even if the country has no functioning government.

All immigrants, not just those facing deportation or seeking asylum, will be affected by this bill. The federal government would be prohibited from recognizing the “matrícula consular” as valid identification. This is often the only piece of identification available to some immigrants, and banning its use will make transitioning to life in the United States much more difficult.

This and other provisions in the both the House and Senate legislation would pave the way for a national identification card. After three years from the date of passage, for example, the federal government would be forbidden from accepting a state driver’s license unless it met certain minimum requirements. A national identification card is of particular concern to immigrants and people of color, because it could be used as a pretext for stops and arrests.

These anti-immigrant provisions have no place in any legislation, let alone a bill that should be narrowly tailored to the recommendations of the 9/11 Commission. The commission itself said so. Families of 9/11 victims said so. The White House should get off the fence. It should ask lawmakers to drop these misguided provisions and focus on the national intelligence issues at hand.

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