February 15, 2008
A recap of the swings, hits and misses of the 110th Congress, as of 2/14/08.
Safe & Free
- NSL Reform Act of 2007 (S 2088) and National Security Letters Reform Act of 2007 (HR 3189). Introduced by Senator Russ Feingold (D-WI) and Congressman Jerrold Nadler (D-NY), respectively, the bills are aimed at fixing flaws in the NSL statute and were introduced, in part, as a reaction to an IG report released in March that outlined the FBI’s severe abuse of the NSL power. Both bills address the major flaws in the statute, including the “gag” provision, and are gaining co-sponsors as they work their way through committees towards the floor.
- The Protect America Act (S 1927). In April, the Department of Justice sent Congress a sweeping proposal to legalize the National Security Agency’s warrantless wiretapping program under the guise of “modernizing” the Foreign Intelligence Surveillance Act (FISA.). Just before the August congressional recess the administration, citing immediate (but false) national security concerns, convinced Congress to pass the Protect America Act, a temporary measure that eviscerated the very law it sought to “modernize” by weakening warrant requirements and, in many cases, doing away with warrants all together. Congress included a six-month sunset in the legislation (see below) with the intention of revisiting the law once Congress returned from recess.
- The RESTORE Act (HR 3773). This bill is the House’s attempt to fix the problems with the Protect America Act. The ACLU believes that HR 3773’s Fourth Amendment protections are not adequate because of the inclusion of so-called “basket” warrants, which allow for the wholesale collection of information that may or may not contain the communications of innocent Americans. But the bill does not include immunity for the telecoms that illegally assisted in the warrantless wiretapping program, which the administration is seeking. The bill passed on November 15, 2007 with a final vote of 227-189.
- The FISA Amendments Act of 2007 (S 2248). The Senate Intelligence and Judiciary Committees had competing versions of this bill. The Intel version contains many of the provisions found in the Protect America Act, essentially legitimizing warrantless wiretapping, and includes telecom immunity. The Judiciary Committee took another route by adding more rigorous judicial review of government surveillance requests and leaving the question of immunity to the entire Senate. The Senate is set to voted to pass the Senate Intelligence Committee’s unconstitutional version of the FISA Amendments Act. (visit www.aclu.org/fisa for updates as the House is expected to act)
- Habeas Corpus Restoration Act of 2007 (S. 185). Introduced by Senator Arlen Specter (R-PA), this bipartisan bill, cosponsored by Senators Patrick Leahy (D-VT) and Christopher Dodd (D-CT) would restore habeas corpus due process rights stripped by the Military Commissions Act of 2006. The bill was voted out of the Senate Judiciary Committee, which Leahy chairs and where Specter is the ranking Republican member. It was offered as an amendment to the 2008 defense authorization bill and received 56 votes – not enough for the amendment to be added, but clearly an indication that a majority of senators favor restoring habeas rights for detainees.
- To restore habeas corpus for individuals detained by the United States at Guantanamo Bay (H.R. 2826). Introduced by Chairman Ike Skelton (D-MO) of the House Armed Services Committee, this bipartisan bill would also undo parts of the Military Commissions Act. The bill was voted out of subcommittee and referred to the full committee.
- Guantanamo Bay Detention Facility Closure Act of 2007 (S. 1469). Introduced by Senator Tom Harkin (D-IA), the bill requires the president to close the facility within 120 days of enactment. Within that time, detainees will be sent either to the United States Disciplinary Barracks at Ft. Leavenworth, KS, or transferred to another country that will not torture or abuse them. The Secretary of Defense can obtain an additional renewal period of 120 days to hold detainees if the government is preparing charges and has a logistical need for the additional time. The bill has been referred to the Senate Armed Services Committee.
- S. Amdt 2125 to H.R. 1585. An amendment to the Department of Defense authorization bill, the amendment would effectively close the detention facility within a year and prohibit the transfer of those being held by the U.S. to facilities outside the continental United States. It also requires the Bush administration to send a report to Congress within 90 days outlining its plans for the remaining detainees.
- Intelligence Authorization Act for Fiscal Year 2008. House and Senate conferees included a provision to the 2008 intelligence authorization bill which would apply the Army Field Manual on Intelligence Interrogations government-wide. The provision, added to the conference report by Senator Dianne Feinstein (D-CA), would require all government agencies, including the CIA, to abide by the Army Field Manual, which prohibits torture and abuse tactics against persons held in U.S. custody. This would effectively end the CIA’s “enhanced interrogation” program.
- Comprehensive Immigration Reform Bill (S. 1348): Part I. In late 2006 the Senate began its work on comprehensive immigration reform legislation, S 1348. The bill, among other things, proposed a path to legalization for many undocumented immigrants, and included numerous provisions that would have impacted civil liberties. While the ACLU did not take a formal position on S 1348, the ACLU took positions on many sections of the amendments offered to the bill. Ultimately, the bill failed after senators could not reach agreement on important provisions of the bill. The amendments that were offered included:
- An amendment to make English the official language (offered by Sen. James Inhofe (R-OK)), which failed, and a companion amendment recognizing English as a unifying language without making it “official” (offered by Sen. Lamar Alexander (R-TN)), which passed.
- An amendment to replace the section of the bill that required the implementation of a nationwide electronic employment verification system (EEVS), which had been shown to have major flaws. The amendment sought to fix some of the privacy and oversight problems with EEVS.
- An amendment to eliminate any mention of the Real ID driver’s license program.
- An amendment to improve conditions for immigrants being detained awaiting a judgment on their immigration status, which passed.
- An amendment eliminating judicial review for visa revocation, which passed.
- The so-called Fairness in Immigration Litigation Act (FILA), which was not voted on, would have imposed unfair restrictions on judicial review for immigration cases.
- Immigration Bill (S. 1639): Part II. We thought immigration was dead. But it reemerged as S. 1639. The debate was less grueling, and the bill ultimately failed due to a vote to cut off debate on an amendment to remove Real ID requirements from the legislation.
- Death in Custody Reporting Act of 2007 (H.R. 2908). Rep. Zoe Lofgren (D-CA) introduced this bill following a hearing examining the deaths of immigrant detainees who had received inadequate medical care. ACLU National Prison Project Attorney Tom Jawetz testified at the hearing. H.R. 2908 would encourage states to report to the attorney general certain information regarding the deaths of individuals in the custody of law enforcement agencies.
- Department of Homeland Security Appropriations Bill (H.R. 2638). Not quite “Immigration: Part III,” this spending bill saw several more amendments addressing immigration issues. The most significant development has been the failure of an amendment to provide federal funds for Real ID. Senators did support amendments that would expand the electronic employment verification system and provide $3 billion in funding for border security. President Bush signed this bill into law October 4, 2007.
- Appropriations for the Departments of Commerce and Justice, and Science, and Related Agencies for FY 2008 (H.R. 3093, sec. 527). In October 2007 the Senate passed a provision in the Departments of Commerce and Justice, and Science, and Related Agencies (CJS) appropriations bill aimed at prohibiting the Equal Employment Opportunity Commission (EEOC) from suing employers that require workers to speak only English while on the job, even when not justified by business necessity.
- Development, Relief and Education for Alien Minors (DREAM) Act (S. 2205). Introduced by Richard Durbin (D-IL), the DREAM Act would have provided undocumented high school students who were brought to the United States by their families in-state residency for college. The DREAM Act failed to achieve the necessary votes to move forward in the Senate.
- Security through Regularized Immigration and a Vibrant Economy Act of 2007 (STRIVE Act) (H.R. 1645). Introduced by Luis Gutierrez (D-IL) and Jeff Flake (R-AZ), the STRIVE Act called for a biometric national ID card and other invasive measures, which the ACLU opposed. Hearings were held but no further legislative action was taken.
- SAVE Act of 2007 (H.R. 4088). Introduced in the House by Rep. Heath Shuler (D-NC), his “enforcement-only” bill would have increased the number of border patrol agents, expanded border surveillance activities, made employee verification mandatory for employers and provided funds to train local and state authorities to enforce immigration laws. This bill could come back at any time because more than 70 Democrats in the House have joined the vast majority of Republicans in cosponsoring this act
- A Bill to Repeal Title II of the Real ID Act (S. 717). In January 2007,, Senators Daniel Akaka (D-HI) and John Sununu (R-NH) introduced this bill to fix Real ID. They have been joined by Senators Alexander (R-TN), Baucus (D-MT), Leahy (D-VT), and Tester (D-MT) as cosponsors. The Senate Judiciary Committee held a hearing on the legislation, but it has not received a vote in committee. A second hearing was held in the Senate Commerce Committee. A companion bill, H.R. 1117, was introduced in March 2007 by Rep. Tom Allen (D-ME) and has attracted 32 cosponsors.
- Senate DHS Appropriations Bill (S. 1644). Senator Lamar Alexander (R-TN) offered an amendment to spend $300 million dollars on grants to states for REAL ID compliance. The Senate voted down the amendment, yet $50 million was eventually provided in the Omnibus Appropriations Act despite Senators’ objections.
- Comprehensive Immigration Reform Bill (S. 1639). The Senate voted not to cut off debate on the amendment stripping any Real ID requirement from the immigration bill, effectively saying they did not want to vote on Real ID.
- Effects of Western Hemisphere Travel Initiative. The Western Hemisphere Travel Initiative was passed as a part of the Intelligence Reform and Terrorism Prevention Act of 2004. It was implemented this year, resulting in passport backlogs lasting months. Some states have pledged to DHS that they will enact WHTI requirements as an alternative to, or in conjunction with Real ID. This issue is still developing in border states.
- Real ID Comment Period. In March, the deadline for the Department of Homeland Security’s comment period passed, and thousands of comments poured in criticizing Real ID. The ACLU helped generate 12,000 comments opposing the national driver’s license program. In total, DHS received more than 21,000 comments opposing Real ID.
- Real ID Regulations. After a ten month delay, Real ID regulations were released on January 11, 2008 by the Department of Homeland Security. The regulations address some of the criticisms of Real ID but remain unrealistic and unenforceable. States have until May 2008 to indicate whether they will become Real ID compliant and then have until 2014 (or 2017 for citizens over the age of 50) to actually become compliant.
Civil Rights and Racial Justice
- Employment Non-Discrimination Act (H.R. 3685). The Employment Non-Discrimination Act (ENDA) was introduced in April 2007. The bill aims to protect workers from discrimination based on sexual orientation or gender identity.
However, as the bill worked its way through committee, the provision protecting transgender workers was stripped out of the bill. The bill’s sponsor, Rep. Barney Frank (D- MA) said that the bill had a better chance of passage if its scope was limited to sexual orientation. This change placed coalition partners in a difficult position. Transgender advocacy groups pulled their support from the bill right away. Others, including the ACLU, continued to support the bill as a step forward for civil rights but expressed disappointment at the exclusion of gender identity.
ENDA passed the House of Representatives on November 11, 2007. In light of the difficulty the bill faced in the House, we don’t anticipate the bill moving forward in the Senate in the near future.
- Hate crimes (H.R. 1592, S. 1105). The Local Law Enforcement Hate Crimes Prevention Act (LLEHCPA), HR 1592, was introduced in the House of Representatives in March and passed on May 3, 2007 by a vote of 237 – 180. LLEHCPA would broaden the definition of hate crimes and provide federal assistance to local law enforcement agencies unable – or in some cases, unwilling – to investigate them alone.
However, the bill has had a tougher time in the Senate. When the bill stalled after President Bush threatened a veto, it was repackaged as the Matthew Shepherd Amendment and attached to the Defense Department authorization bill.
Unfortunately, the measure was stripped out of the bill before making it to the floor. The measure still exists as a stand-alone bill and may see congressional action in the coming year.
- Lilly Ledbetter Fair Pay Restoration Act (H.R. 2831/S. 1843). This bipartisan legislation would restore protections against pay discrimination that were undermined by the May 29, 2007 Supreme Court decision Ledbetter v. Goodyear. In that 5-4 decision, the Supreme Court ruled that workers cannot sue for pay discrimination if they learn of it more than 180 days after the employer’s original decision to pay the employees less than their coworkers. The Fair Pay Restoration Act addresses wage disparity based on race, color, religion, sex, national origin, age, and disability, and would reestablish that each unequal paycheck represents continuing discrimination. With this protection, workers will not be prevented from bringing legitimate claims just because they were unaware of the ongoing discrimination. H.R. 2831 passed the House of Representatives on July 31 by a vote of 225-199. The companion bill, S. 1843, was introduced in the Senate on July 20, and sent to the Committee on Health, Education, Labor and Pensions, where a hearing was held on January 24, 2008. Sen. Kennedy hopes to bring the bill to the floor for a vote this spring.
- Trafficking Victims Protection Act (H.R. 3887). Among its provisions, the TVPA contains new safeguards aimed at stopping the abuse, exploitation and trafficking of domestic employees by foreign diplomats. Passed the House December 4, 2007 by a vote of 405 – 2. A companion bill is slated to be introduced by Senator Biden
- Community-Based Abstinence Education (CBAE). Funding for this program was included in the Labor-Health and Human Services-Education (commonly referred to as “Labor-H”) appropriations bill. The funding was slashed by $28 million in the Senate. However, the House voted to increase funding by $28 million – the second-largest increase in the history of the program. The increase remained in the final appropriations bill, which was then vetoed by President Bush. The ACLU and other reproductive health advocates will continue to advocate for CBAE funding levels to be decreased, if not eliminated, in the coming year. The ACLU prefers comprehensive sex education to less effective abstinence-only programs like CBAE.
Prison Abuse Remedies Act (H.R. 4109). The Prison Abuse Remedies Act was introduced on November 7, and received a hearing in the House Judiciary Committee subcommittee on Crime, Terrorism and Homeland Security. The ACLU Washington Legislative Office and National Prison Project worked closely with allies such as the American Conservative Union in preparing witnesses for the hearing and advocating for the bill on the Hill.
The aim of the Prison Abuse Remedies Act is to reform the Prison Litigation Reform Act (PLRA) of 1996, which was passed to reduce frivolous prisoner lawsuits, but in reality has made it nearly impossible for prisoners to report abuse and unconstitutional conditions of confinement in federal court.
We anticipate the bill will be marked up in the full House Judiciary Committee and be introduced in the Senate this year.
Federal crack/powder cocaine sentencing. 2007 was the year when we finally started seeing some positive movement toward repairing the disparity between federal crack and powder cocaine offenses. Current federal sentencing law punishes crack cocaine offenders more severely than any other drug offenders. Possessing or dealing 5 grams of crack cocaine results in the same five-year mandatory minimum sentence as dealing 500 grams of powder cocaine.
Four bills were introduced this year that would address this 100:1 sentencing disparity:
- Drug Sentencing Reform Act (S. 1383). Introduced by Senator Jeff Sessions (R-AL), it would reduce the disparity to 20:1 and reduce the mandatory minimum sentence to one year.
- Fairness in Drug Sentencing Act (S. 1685). Introduced by Senator Orrin Hatch (R-UT), this bill would also reduce the disparity to 20:1 and eliminate the mandatory minimum.
- Senator Biden’s Drug Sentencing Reform & Kingpin Trafficking Act (S. 1711) and Representative Jackson-Lee’s companion bill in the House (H.R. 4545). The legislation would eliminate the disparity as well as the mandatory minimums altogether. The ACLU supports this bill.
In addition, the United States Sentencing Commission issued two significant decisions affecting federal drug sentencing: On November 1, it voted to bring the guideline ranges for crack cocaine federal sentences back in line with the mandatory minimum statute. As a result of the previous guidelines, crack cocaine defendants sentenced to the mandatory minimums often served many more months than required by the law for their offense. On December 12, the USSC went on to apply these changes retroactively. Thanks to the USSC’s decision, offenders sentenced under the previous guidelines will now have the opportunity to appear before the court and have their case reviewed by a judge. The Supreme Court took a step towards ending the disparity in crack/powder sentencing when it ruled 7-2 in the Kimbrough decision on December 10 declaring that judges could issue lighter sentences than the U.S. Sentencing Commissions’ guidelines in crack cocaine cases.
End Racial Profiling Act (ERPA). ERPA was introduced on December 13, 2007 by Senator Russ Feingold (D-WI) and Rep. John Conyers (D-MI).
ERPA would ban the practice of racial profiling by federal law enforcement agencies and provide federal funding to state and local police departments if they adopt policies to prohibit the practice. The legislation would also create an enforcement mechanism to ensure that anti-profiling policies are being followed and victims of profiling are able to report complaints against police officers. Federal law enforcement agencies would be required to collect demographic data on routine investigatory activities, develop procedures to respond to racial profiling complaints and develop policies to discipline officers who engage in the practice.
Federal Communications Commission. On July 17, 2007, Senator Jay Rockefeller (D-WV) introduced S 1780, a bill that would give the Federal Communications Commission the authority to punish broadcasters for the accidental airing of an expletive. The bill is a response to a recent federal appeals court ruling that blocked the FCC from fining broadcasters for airing such fleeting expletives. S 1780 passed out of the Senate Commerce Committee. Similar legislation was introduced to the House on September 19, 2007. Both bills would maintain FCC policy that a single word or image may constitute indecent programming.
The Free Flow of Information Act of 2007 (HR 2102/S 2035). The House version was introduced in May by Congressmen Rick Boucher (D-VA) and Mike Pence (R-IN). The initial bill balanced national security concerns and freedom of the press by requiring journalists to reveal sources only if there was an “actual and imminent” threat. However, a flurry of subsequent amendments gave the administration more latitude to determine who qualifies as a “journalist” and the ability to label journalists as “terrorists.” There were signs of promise, however; the decision of when to force journalists to reveal information is now determined by the courts instead of the attorney general, hopefully reducing the amount of politically-motivated subpoenas. The final bill passed out by a vote of 398-21. It is unlikely the president will sign the shield bill even if it is passed by the Senate.
The initial Senate version of the bill, sponsored by Senator Arlen Specter (R-PA), already contained a “national security” exception that undermines the legislation. Senator Jon Kyl (R-AZ) then added amendments that limit the journalists’ privilege through broader exceptions. Significantly, the Senate bill does not require that a federal court balance the public’s interest in the free flow of information where the government raises national security concerns; instead, the attorney general makes that determination. The Senate bill also narrows the definition of journalist by including a compensation requirement. The legislation was passed out of committee and is now waiting to be sent to the Senate floor.
Both bills include broader exceptions than what we would like to see, including for civil cases, trade secrets cases, and where “necessary” for national security or to prevent harm to the public. The "imminent and actual" threat originally proposed by Senator Richard Lugar (R-IN) has been replaced with a much more relaxed standard that simply allows the administration to allege show likely threats to the public under a lower “preponderance of the evidence” standard. The shield bills only apply to matters in federal court and do not alter existing state shield laws. Despite our concerns about the House bill, we have recommended to Senate leadership that they send the House bill to the floor for a vote because it provides stronger protections for journalists than those available under it's much better than the Senate bill.
- Legislative Transparency and Accountability Act of 2007 (S. 1). Under Section 220 of the bill, advocacy organizations and citizen activists would have found their communications to the general public about policy matters redefined as lobbying – and therefore subject to registration and strict quarterly reporting. Failure to register and report would have resulted in severe civil and criminal sanctions. The ACLU fought side-by-side with some “non-traditional” allies, including National Right to Life and Traditional Values Coalition, and succeeded in getting Section 220 out of the bill.