A CONGRESSIONAL SHELL GAME

By William Fisher

As one key provision of the USA Patriot Act -- a central plank of the Bush Administration's war on terror -- was being ruled unconstitutional, the US House of Representatives was using the reform of the country’s intelligence community as a vehicle for enacting parts of Patriot Act II “by stealth”.

Intelligence reform was a principal recommendation of the so-called 9/11 Commission, and the Senate last week passed bipartisan legislation that closely followed the Commission’s recommendations. But the House version added a number of new provisions that critics say are actually elements of a ‘Patriot II’ proposal. Many observers feel the House and Senate versions of the intelligence reform legislation are too far apart to be reconciled by a House-Senate conference committee.

For example, the House bill includes an amendment to allow the government to detain foreign terror suspects and deport them to countries known to practice detainee torture once the State Department had received assurances that they would not be harmed by those countries.

Representative John Hostettler, Republican of Indiana, author of the amendment, said his measure would “protect the American people from dangerous aliens while continuing our nation's proud history of providing refuge for the innocent." But a fellow Republican, Christopher H. Smith of New Jersey, said the bill would "erect a number of brand-new barriers to asylum claims" and would result in "bona fide refugees being returned to their persecutors."

Human Rights Watch, a Washington-based advocacy group, said it believes that many aspects of the House legislation “raise serious human rights concerns.” The measure “undercuts US commitments to vulnerable populations, and it does so disingenuously by dressing up its proposals in the language of terrorism, when in fact many of its provisions have nothing to do with terrorism. Instead, the bill will put populations of immigrants, such as refugees and persons without any links to terrorism, at risk of serious abuse.”

The American Civil Liberties Union (ACLU) also expressed alarm regarding the amendments that “create 23 new federal death penalties and to amend the deportation provisions of the Patriot Act…” These amendments “additionally detract from the findings of the 9/11 Commission and expand Patriot Act powers and further scapegoat immigrants.”

Other human rights advocates such as Human Rights First said the deportation provision “contradicts pledges President Bush made after the Abu Ghraib prisoner-abuse scandal erupted this spring that the United States would stand behind the U.N. Convention Against Torture.” They say it could result in the torture of hundreds of people now held in the United States who could be sent to such countries as Egypt, Saudi Arabia, Yemen, Jordan and Pakistan, all of which have dubious human rights records.

The House deportation provision would in effect provide statutory authority to a practice already widely used by such agencies as the CIA. Known as ‘extreme rendition’, it involves turning people in CIA custody over to countries whose prisons are known to engage in torture. At present, such acts of ‘extreme rendition’ are carried out under the authority of a Presidential order, known as a ‘finding’. The last such order was signed by President Bill Clinton. The CIA claims it receives assurances from the receiving countries that prisoners will not be abused.

Since the September 11th 2001 attacks, the CIA’s use of this and related practices has become far more widespread, according to CIA testimony before Congress. As reported by ‘The Washington Post’, former CIA Director George J. Tenet, testifying earlier this year before the commission investigating the September 11th attacks, said the agency participated in more than 70 renditions in the years before the attacks. In 1999 and 2000 alone, the ‘Post’ said, “the CIA and FBI participated in two dozen renditions.”

A number of those deported allege they were tortured while in detention in other countries and are now suing the US government.

For example, a Canadian computer engineer, Maher Arar, was taken into custody at New York’s John F. Kennedy International Airport after arriving on a flight from Tunisia. He was deported to Syria, the country of his birth, and charges he was tortured for the ten months he was imprisoned there. He is suing the US Government, and the Canadian Government has also launched an inquiry. The US Department of Justice claims his deportation was legal and justified. However, he was never charged with any crime, either in the US or in Syria.

In another similar CIA action, the CIA and Swedish security forces allegedly kidnapped two Egyptian nationals who were seeking asylum in Sweden, flew them in a CIA-chartered aircraft back to Egypt, where they were imprisoned and say they were tortured. One man was released without charge after almost a year in detention; the second was tried by an Egyptian military court and sentenced to 25 years in prison. The ‘rendition’ charge, made by a program on Swedish television, is being investigated by the Swedish Government.

The House debate took place soon after a Federal judge struck down one of the key provisions of the USA Patriot Act – the legal centerpiece of the Bush Administration’s war on terror. US District Judge Victor Marreo ruled in favor of the American Civil Liberties Union (ACLU), which challenged the power the Federal Bureau of Investigation (FBI) to use the Act to demand confidential financial records from companies without court approval as part of terrorism investigations. The ACLU brought the suit against the Government in cooperation with its New York City affiliate.

The ruling, the first to reject any of the new surveillance powers authorized by the Patriot Act, struck down Section 505 of the law on grounds that it violates free speech rights under the First Amendment to the US Constitution, as well as the right to be free from unreasonable searches under the Fourth Amendment. The Patriot Act also bars companies and other recipients of subpoenas from revealing that they received the FBI demand for records. Judge Marreo held that this permanent ban was a violation of free speech rights.

"Today’s ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."

The ruling was the second blow to the Bush administration's anti-terrorism policies. In June, the US Supreme Court ruled that terror suspects being held in U.S. facilities like Guantanamo Bay, Cuba, have a right to use the American judicial system to challenge their confinement. That ruling was a defeat for the president's assertion of sweeping powers to hold ‘enemy combatants’ indefinitely after the September 11th 2001 attacks.

However, it is well known the Justice Department wants to expand the powers it gained under the original Patriot Act, which was passed with little debate in the chaotic days following the 9/11 attacks.

The 2001 Patriot Act gave the government authority to monitor phones or computers used by a suspect or target of a special Justice Department warrant; increased information sharing between domestic law enforcement and intelligence; allowed evidence gathered during espionage wiretaps to be used in criminal prosecutions; allowed the detention of non-citizens for seven days without formal charges; and broadened domestic terrorism to include attempting to change the "policy of the government by intimidation or coercion."

Patriot Act II, known as the Domestic Security Enhancement Act of 2003, has never been introduced in the Congress. However, a leaked Justice Department draft seeks further expansion of surveillance and prosecutorial powers, including secret arrests and detentions, and increased power to issue top-secret Foreign Intelligence Surveillance Court warrants to include US citizens suspected of terrorist activities.

After September 11th, the Justice Department adapted the government's power to detain before trial material witnesses to a crime in order to hold hundreds of Muslims for extended periods without charges, although few ultimately faced prosecution over anything more serious than immigration violations.

One of these was a Portland, Oregon, lawyer, Brian Mayfield, 38, a Muslim-American, who was jailed for several weeks as a material witness because the FBI erroneously said his fingerprint was found on a backpack used by terrorists in the Madrid train bombing. The Justice Department apologized to Mayfield, but he is now suing them.