Intelligence Reform No Victory for Civil Rights

by William Fisher

Many of the more draconian provisions affecting privacy, secrecy, and asylum-seekers originally included in Congress' intelligence reform bill passed this week were omitted in the law's final version. But the agreed compromise still contains language that troubles human and civil rights organizations.

The House of Representatives' version of the bill would have allowed non-citizens – including those likely to face torture if returned to their home countries – to be deported without an immigration court hearing; made it much more difficult for genuine refugees to prove their asylum cases; and deprived judicial review to victims of torture and other forms of persecution.

These and similar provisions were removed under pressure from the White House, leaders of both political parties, the families of the victims of the Sept. 11, 2001 terrorist attacks and members of the 9/11 Commission, on whose recommendations the intelligence overhaul is based.

"These provisions would have put the lives of refugees at real risk," said a statement from Human Rights First, an advocacy group. "The fact that they were dropped is a victory for America's commitment to protecting the persecuted," it added.

Under U.S. law, both the House and Senate must pass legislation separately. If the two versions contain disagreements, they are reconciled in a conference committee of the two bodies.

The 9/11 Commission did not recommend changes in U.S. immigration law, and most observers found the Senate version of the reform bill, the "Intelligence Reform and Terrorism Prevention Act of 2004," much closer to the commission's recommendations.

Removal of the House's immigration provisions, among others, allowed both legislative bodies to pass a compromise bill for the president's signature.

While the harshest refugee and immigration proposals were dropped from the final version, the bill now includes a requirement that the General Accounting Office (GAO), Congress' investigative arm, conduct a study, "to evaluate the extent to which weaknesses in the United States asylum system and withholding of removal system have been or could be exploited by aliens connected to, charged in connection with, or tied to terrorist activity."

Under the new measure, people indicted on terror charges will find it much more difficult to gain their freedom on bail, as a legal presumption would be established denying bail for anyone indicted by a grand jury on terrorism charges. Although the suspect could appeal to a judge, the burden of proof would be on the defendant rather than on the government.

Previously, that stipulation applied to suspects in violent and drug crimes, but not to alleged terrorists. Skeptics say the provision has the potential to be abused, possibly resulting in long detentions for people ultimately found innocent.

According to the Associated Press (AP), Senator Russell Feingold, a member of the opposition Democratic Party from the state of Wisconsin, claims the Justice Department (DOJ) "has a record of abusing its detention powers post-9/11, and of making terrorism allegations that turn out to have no merit."

The new legislation also expands the ability of the Federal Bureau of Investigation (FBI) to obtain eavesdropping warrants under the Foreign Intelligence Surveillance Act (FISA).

Under current law, these secret warrants are reserved for non-U.S. citizens who the government can show are affiliated with a foreign power or international terrorist group, such as al-Qaeda. But the DOJ, to which the FBI reports, has made it known it would favor a USA PATRIOT Act II to expand those powers even further. Both Republican and Democratic civil libertarians have opposed such expansion.

The current USA PATRIOT Act, hurriedly passed by Congress weeks after the 9/11 attacks, gave the government broad powers to conduct secret searches, wiretaps, and other forms of surveillance. Sections of it are scheduled to expire in 2005, and there has been heated debate about whether they should be extended.

The new intelligence bill also broadens prohibitions against providing material support to terror groups, makes it a crime to visit a terror camp that provides military-style training and allows the FBI to obtain secret surveillance warrants against "lone wolf" extremists not known to be tied to a specific terrorist group.

"Overall, it's another threat to civil liberties in this country," a spokesman for the American Civil Liberties Union (ACLU) told the AP. "It's just a continuation of what the administration's been doing."

The final bill also reinforces the government's secrecy policy. For example, the Senate version of the bill authorized disclosure of the gross amount of the nation's intelligence budget – reportedly now about $40 billion annually. But this disclosure was rejected by House negotiators, despite the unanimous recommendation of the 9/11 Commission.

According to the Government Secrecy Project of the Federation of American Scientists (FAS), this "is a setback that tends to reinforce the arbitrary and excessive secrecy that the 9/11Commission found in the intelligence bureaucracy."

The federation notes the legislation "revivifies the dormant Public Interest Declassification Board, formally established four years ago but never convened, and assigns it the additional task of 'reviewing' Congressional requests for declassification of particular records."

Human rights advocates are also concerned about what the ACLU, a Washington-based advocacy group, calls the "fundamental tension between intelligence gathering and civil liberties."

"Where government is focused on gathering intelligence information not connected to specific criminal activity, there is a substantial risk of chilling lawful dissent. Such inquiries plainly have a chilling effect on constitutional rights," added the group in a statement.

The ACLU called for "specific safeguards for domestic collection of intelligence information that preserve the role of the FBI while ensuring against the use of spy tactics against Americans through strengthened guidelines and other checks and balances to bar political spying."

Civil liberties advocacy groups have sharply criticized the FBI and immigration officials in the Department of Homeland Security (DHS) for detaining thousands of visitors to the United States for immigration violations without access to legal counsel or appeal.

The DHS is in charge of the U.S. immigration prison system, from which many of these detainees have been deported. Since the 9/11 attacks, the FBI has rounded up and detained several thousand U.S. citizens and visitors, most of them Arabs or Muslims. However, no one has yet been convicted of a terror-related charge.

Groups are also troubled by the mechanism the new law sets up to protect civil rights. The Privacy and Civil Liberties Board is supposed to review federal policies and practices, yet the law gives the president the authority to appoint its members and denies it subpoena power.

The final version of the intelligence reform act also stripped out a provision creating an inspector general position in the office of the new National Intelligence Director. Inspectors-general typically conduct independent probes of alleged abuses within government departments, and are present in virtually all major departments, including the DOJ, the DHS, and the Central Intelligence Agency (CIA).

Other provisions of the new law criminalize giving material support to suspected terrorists; require extensive sharing of intelligence and law enforcement information among federal, state, local, and private entities; direct the DHS to develop a national strategy for transportation security, and add at least 2,000 Border Patrol and 800 customs agents annually for five years and 8,000 beds a year to house immigration detainees and people suspected of terrorism.

Supporters of stricter laws on U.S. immigration reform and border protection have promised a comprehensive debate in the new Congress, which convenes in January.

The border protection and immigration issues have been championed by Rep. James A. Sensenbrenner, a Republican from the state of Wisconsin, who is the powerful chairman of the House of Representatives Judiciary Committee. Sensenbrenner is responsible much of the anti-refugee language in the House version of the bill.

For this reason, few government-watchers expect the controversy over intelligence reform to end with the passage of the new law. As noted by Howard Fineman in Newsweek magazine, "The intra-party battle between the Bush White House and recalcitrant House Republicans over intelligence reform is just the overture to the opera, a discordant melody we're going to hear over and over again during the next two years."

December 11, 2004

William Fisher writes for Inter Press Service.

Copyright © 2004 Inter Press Service