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The Dangers of Expanding the Patriot Act

September 30, 2004 The House 9/11 Commission bill politicizes the attempts to reform the intelligence community and is filled with controversial measures that have nothing to do with intelligence. The 9/11 Commission did not recommend that the Patriot Act be expanded, or that due process and judicial review in the immigration system be curtailed. Yet, that’s exactly what H.R. 10 will do, if passed. Broadly expands government surveillance powers (Section 2001). H.R. 10 would remove the requirement that non-citizen targets of secret intelligence surveillance and searches be somehow connected to a foreign power. This undercuts the entire purpose of having secret intelligence powers in the first place. This provision is commonly known as the “lone wolf” provision, or “Moussaoui fix,” since proponents of the change argue that it is needed because the FBI did not have sufficient power to investigate Zacarias Moussaoui before 9/11. Yet Congress’ own investigation found that the FBI simply misunderstood the legal standard, and surveillance was clearly available to the bureau. It was an issue of bad lawyering, not bad law. Broadly expands the “guilt by association” material support provisions of Patriot Act (Section 2043). The vague definition of “material support” in the Patriot Act has been a key controversial issue, and H.R. 10 would further expand the already vague definition. Mere association or membership in a group would be a crime, even if no money or other resources are provided. It would apply even to a person that has no involvement with the group’s violent activities and even to a member that is trying to persuade the group to give up violence. Moreover, the definitions of “terrorist organization” and “terrorist activity” are also vague and overbroad. Organizations that advocate for civil disobedience that might be dangerous to human life, even if only to the lives of their own members, may be labeled terrorist organizations. For example, the arrest of individuals that engaged in nonviolent civil disobedience to end the U.S. military’s use of Vieques Island in Puerto Rico as an exercise range have been labeled as terrorism cases by the government. Provides Extremely Broad Access to Arrest Records (Section 2142). H.R. 10 would provide employers with access to the records of people who have been arrested, but never charged, indicted or convicted of a crime. No Civil Liberties Watchdog. H.R. 10 fails to include one of the most important 9/11 Commission recommendations, which is the need for an independent watchdog for civil liberties with government-wide reach. Drastically curtails fairness in the nation’s immigration system by attacking Habeas Corpus (Sections 3006 and 3009). H.R. 10 would eliminate judicial review of some immigration deportation orders by limiting the “Great Writ” of habeas corpus, which allows individuals to go before a federal district court judge and argue for their rights. For example, habeas review would be barred in cases involving (1) challenges to removal where the deportee is likely to be tortured upon return; (2) attorney malpractice or incompetence; and (3) virtually all cases of “expedited removal,” which allows immigration officials to summarily deport certain non-citizens, including many already in the country. Deport non-citizens to countries without a functioning government (Section 3033). H.R. 10 would authorize the government to deport non-citizens to countries that lack a functioning government as long as the country does not physically prevent the deportation. This will subject many deportees to serious human rights violations, torture and even death. The Supreme Court is scheduled to adjudicate this issue in late 2004, and H.R. 10 represents an attempt by the House leadership to pre-empt the decision. Raise burden of proof to asylum-seekers, causing many to face persecution (Section 3007). H.R. 10 dramatically increases the standard to receive asylum in the United States by requiring that asylum applicants prove that race, religion, nationality, membership in a particular social group, or political opinion was or will be the “central motive” for persecution rather than be a partial motive, as is currently required. For example, a Tibetan monk who faces a sentence to forced labor in a Chinese labor camp would have to show not only that the sentence was motivated “in part” by the monk’s ethnicity or religion, but was the “central motive.” If the “central motive” was, instead, to provide profit for the company that uses the forced labor, the monk would be ineligible for asylum. Create Uniform Driver’s Licenses (Sections 3051 to 3056). This broad section would create a de facto national identification card. It would establish requirements that would bar tens of thousands of undocumented immigrants from obtaining a driver’s license, and would require the linking of state motor vehicle databases.

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