Letter to NY State Congressional Delegation re: 9/11 Recommendations Implementation Act

October 5, 2004 Honorable Gary Ackerman 218-14 Northern Blvd. Bayside, NY 11361 Note: Letter sent to entire New York State delegation in the House of Representatives Dear Congress Member Ackerman: We write to express our concerns over a number of provisions in H.R. 10 (The 9/11 Recommendations Implementation Act) that pose a serious threat to civil liberties. In its current form the legislation would expand provisions of the USA PATRIOT Act, which in their current form seriously undermine constitutional rights and liberties. What’s more, the proposed bill constitutes a blatant attack on the basic rights of immigrants. We are particularly troubled by the inclusion of provisions that the 9/11 Commission did not recommend. Commission members and relatives of the victims of the September 11th attacks have spoken out against inclusion of these provisions in an intelligence reform bill. H.R. 10 politicizes the attempts to reform the intelligence community by including a number of troubling provisions unrelated to intelligence reform. We ask that you not vote for the following anti-civil liberties provisions contained in H.R. 10: Section 2001. This section broadly expands government surveillance powers by removing the requirement that non-citizen targets of secret intelligence surveillance and searches are connected to a foreign power. Removing the requirement would undercut the basic rationale for secret intelligence powers-that their use be related to surveillance of a foreign power. The standard for secret surveillance included in Section 2001 is commonly known as the “lone wolf provision” or “Moussaoui fix,” since proponents of the change argue that it is needed because the FBI lacked the authority to investigate Zacarias Moussaoui before 9/11. Yet Congress’ own investigation found that the FBI simply misunderstood the legal standard. Surveillance was clearly available to the bureau; the problem was one of bad lawyering, not bad law. A compromise to Section 2001 adopted last week by the Judiciary Committee is also unacceptable. The amendment offered by Reps. Berman and Schiff allows the Foreign Intelligence Surveillance Court to “presume” that a person involved in “international terrorism or activities in preparation therefore” is acting on behalf of some unknown foreign power. As explained above, it is essential that the government demonstrate that targets of secret intelligence surveillance are connected to a foreign power. A presumption of the connection is insufficient. Section 2043. The “guilt by association” material support provisions contained in the USA PATRIOT Act have been some of the most widely criticized provisions in the Act. H.R. 10 would further broaden the USA PATRIOT Act’s already vague definition of material support. Mere association or membership in a group would be a crime, even if no money or other resources are provided to the group. Liability would attach to a person with no involvement in the group’s violent activities and even to a group member that is trying to persuade the group to give up violence and join the political process. Moreover, the definitions of “terrorist organization” and “terrorist activity” are also vague and overbroad. These definitions raise serious First Amendment concerns for organizations and individuals acting in the time-honored tradition of nonviolent civil disobedience. Section 3006. This provision expands significantly the government’s power of “expedited removal,” which permits immigration agents rather than judges to summarily deport individuals. H.R. 10 would subject individuals who entered the United States without inspection to expedited removal unless they have been present in the United States for more than five years. Hundreds of thousands of individuals living in the United States for years would be subjected to “drive by deportations,” conducted by immigration agents rather than immigration judges. This new power would severely undermine due process rights in the United States. Section 3007. This section raises the burden of proof for asylum-seekers, which will cause many to face persecution. H.R. 10 dramatically increases the burden of proof to obtain 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 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. Section 3009. This section drastically curtails fairness in the nation’s immigration system by eliminating habeas corpus review for numerous immigration decisions. Under H.R. 10, 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 those living for years in the United States. Section 3032. Under this section, individuals facing deportation by the United States would be prohibited from invoking the protections of the Convention Against Torture, even if they face a grave risk of torture. The United States along with 135 other countries signed the Convention Against Torture, which prohibits nations from engaging in torture directly or sending people to a nation where they risk being tortured. This provision allows deportations of individuals to nations where they will face torture if the individuals engaged in past terrorist activities, which the USA PATRIOT Act defines so broadly as to make innocent persons subject to prosecution as terrorists. This section amounts to government approval of torture. Section 3033. This section allows deportation of non-citizens to countries without functioning governments. 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. Sections 3051 to 3056. These sections 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, creating serious privacy concerns. Four states and more than 350 cities and towns, including 24 municipalities in New York State, have passed resolutions that call for repeal of USA PATRIOT Act provisions that violate our rights of privacy, speech and due process. Two federal judges have declared parts of the USA PATRIOT Act unconstitutional. Yet H.R. 10 would expand these controversial powers. Congress should not expand the USA PATRIOT Act, but rather repeal those provisions that infringe on civil liberties and civil rights. Should you have any questions regarding this matter, please feel free to contact us. We look forward to hearing from you. Sincerely, Donna Lieberman Executive Director Udi Ofer Project Director, Bill of Rights Defense Campaign