Immigration

The process started last Sunday after the Bush administration and congressional leaders met and agreed to come up with drafts of an anti-terrorism act. By Wednesday, two draft bills had been released. One came directly from the Department of Justice; the other was from Sen. Patrick Leahy, D-Vt. The two bills share many provisions. Among them: extending more aid to victims of terrorism; allowing for so-called “roving wiretaps”; and giving law enforcement access to previously off-limits education records. Now, legislators are at work crafting the two draft bills into one proposal that could be introduced next week, but there are some policy differences between the two bills.

“The immigration proposal and the wiretap proposal are two points where differences remain,” says David Carle, a Leahy spokesman.

The Department of Justice’s bill introduces a host of surveillance and detention measures that have been immediately denounced by civil libertarians. The proposal includes intrusions on e-mail privacy, extensions of the government’s ability to use information gathered by dubious means (such as torture) and the relaxation of safeguards against intrusive government surveillance.

Some critics are accusing the Justice Department of taking opportunistic advantage of the national security crisis to push aside the judicial checks and balances that hold law enforcement accountable.

“The politics of this is: Let’s try to get our wish-list passed in the name of preventing terrorism, because Congress is unusually receptive right now,” says Mike Godwin, policy fellow at the Center for Democracy and Technology. “It’s a Department of Justice bill written by career Justice people who have a longstanding agenda and see the opportunity to put things in that they have always wanted to have.”

The proposals causing the greatest outcry focus on immigration. One section would allow immigrants to be detained indefinitely without being charged with a crime or appearing before a judge. Under present law, an immigration judge determines whether the government case against a suspect is good enough to justify holding him or her, but if the DOJ bill becomes law, the prosecutor would be judge, jury and jailer.

“These actions offend the Constitution and are an affront to the millions of law-abiding immigrants in our country as well as the millions of other citizens who are sons and daughters of immigrants,” says Anthony Romero, the executive director of the American Civil Liberties Union. The ACLU has been joined by a motley crew of more than 150 organizations both liberal and conservative. Everyone from Phyllis Schlafly’s Eagle Forum to the Arab-American Anti-Discrimination Committee has pledged to work with Congress to rein in the attack on civil liberties.

Congressional leaders from both parties also objected to the prospect of detaining immigrants indefinitely. “It allows the INS to hold immigrants until the attorney general is convinced that they’re not a threat,” says Rep. Barney Frank, D-Mass. This could take a week, a month or years, but the problem is that it’s subjective. “It goes much further than any other immigration law — possibly too far.”

Earlier this week, Attorney General John Ashcroft wrote an order doubling the amount of time — from 24 hours to 48 hours — that an immigrant could be detained by INS officials without going before a judge. Congress did not demur.

But indefinite detainment goes too far, according to some immigration experts. “Limits should be applied,” says Doris Meissner, a former INS commissioner. “There should be a statute change that allows for more flexibility of detention, but this plan seems to be too open-ended. The timing issue is purely subjective, but a week seems long enough and at two weeks I’d start to be concerned.”

And even with two weeks allotted, a judge could still extend the deadline. Meissner points out that laws passed after the 1993 World Trade Center bombing already gave the government more power to hold immigrants and make a case against terrorists. “My overall impression is that by and large the government has plenty of authority already to do what they need to do.”

For example, Meissner notes that under current law, the government can already use so-called “secret evidence” to deport or detain a defendant, without publicly disclosing its evidence to the defendant or his attorney. A judge then decides whether the evidence justifies punishment.

Provisions in the new bills extend the range of people who could be prosecuted with these already established weapons. The immigration provisions of the Justice Department bill also attempt to broaden the definition of terrorist activity, amending the Immigration and Nationality Act of 1952 to allow law enforcement to detain not just terrorists, but anyone affiliated with terrorist organizations — or organizations that are found to offer “material support,” such as a safe house, transportation, communications, funds, false documentation or weapons. You could be arrested as a “terrorist” just for giving money to your mosque.

“People are raising an eyebrow about the parts of the plan that expand the definition of terrorism,” says Angela Kelley, deputy director of the National Immigration Forum, a pro-immigrant advocacy group. “The attorney general’s bill expects people to know that whatever groups they associate with could be connected to other terrorist organizations. There’s a concern that the onus is too broad.”

Immigration law is just one front in the new law enforcement assault on civil liberties. Long sought-after expansions in wiretapping permissions are also part of both bills.

The Justice Department bill extends telephone wiretapping law to e-mail, without taking into account distinctions between the two mediums. Under current wiretap law, according to Godwin of the Center for Democracy and Technology, if law enforcement wanted to conduct a full-fledged wiretap of a phone, officials had to convince a judge that they had exhausted other options.

However, the standard is much lower when law enforcement is seeking to know what phone numbers a person has called and received calls from. While a judge must certify such requests, the procedure is effectively a rubber stamp. All a prosecutor has to do is fill out a form, and the judge must comply.

Under the proposed new law, the header information in e-mail messages would be treated under the same standard as phone number information. “They’re equating the telephone number that was called with the header information on an e-mail,” says Steele.

“Your name, your e-mail address, the IP address that you used, the IP address that your message bounced from, the time you sent it, the time you received it, the subject line — these are all things that are very revealing,” says Godwin.

Sen. Leahy’s bill would temper the Department of Justice bill on this point, requiring law enforcement to prove the relevance of e-mail surveillance to a specific case. It’s a question of “how is this relevant,” says a Leahy legislative aide. “Right now, a judge is not authorized to ask that question.”

Other proposals in the bills seem to have little relevance to the fight against terrorism. For example, the Department of Justice bill proposed establishing a DNA database for every person convicted of any felony or certain sex offenses.

“It’s not going to make a big difference on terrorism,” said Shari Steele, executive director of the Electronic Frontier Foundation, noting that previous attempts to pass such a proposal that have been struck down. “The only way that it would is if the terrorists that they’re seeking happen to be convicted felons, [but] that doesn’t fit the [normal] profile of terrorists.”

Under the Department of Justice legislation intelligence agencies would be able to more freely exchange information. Sen. Leahy and Rep. Barney Frank want to impose limits on how much sharing can take place. “The J. Edgar Hoover experience showed us what can happen when law enforcement shares information that isn’t vital to security but is embarrassing,” says Frank.

The Department of Justice bill also extends the sharing of information to evidence collected by foreign intelligence sources, even if that information was gathered in violation of the Fourth Amendment. Illegal search and seizure to obtain evidence, as long as it is not performed by U.S. officials, would no longer be a reason to dismiss evidence, thus opening the door to U.S. law enforcement agencies’ taking advantage of evidence obtained by torture in foreign countries.

Both bills agree on the necessity for “roving wiretaps,” which give law enforcement greater latitude in listening in. “Under an ordinary wiretap you have to specify the location where you are doing surveillance,” says Lee Tien, senior staff attorney for the Electronic Frontier Foundation. “If it turns out the person has gone somewhere else you need to apply for another intercept order. A roving wiretap sets up a situation where you don’t have to seek additional court authorization for each location’s telephone line.”

The changes in wiretapping law are in addition to the extension of wiretap law already approved by the Senate last week in a bill called the Combating Terrorism Act of 2001. That bill allows authorities to survey, without a warrant, the Web sites a person has visited and the names and addresses in e-mail over a 48-hour period.

Some experts don’t think the proposals are as egregious as they sound to civil libertarians. One legal scholar who worked for the INS under Meissner argues that the expanded powers of the Anti-Terrorism Act must be seen in the context of the largest terrorist attack ever on American soil.

“The proposals give the government a broader range of power,” says David A. Martin, a law professor at University of Virginia who worked as head counsel for INS from 1995 to 1998. “We’re still not rolling out the full array of measures that could limit the freedom of aliens.”

“It’s not surprising that they’re looking for broader measures of law enforcement. But the bill shows that they’re really struggling with how to deal with real threats and still maintain civil liberties. They’re trying to craft it with some protections left.”

For example, the government may be allowed to hold legal and illegal immigrants without facing an immigration judge, but defendants haven’t completely given up their right to a trial.

“You do still have access to the District Court in the District of Columbia,” Martin says. “So if you’re a legal alien, say with a student visa, and you’ve been held for a few weeks without any sign of being deported or moved through the system, you could go to court and a judge could rule that your detainment was against the Constitution.”

The government could have removed this provision, or added others that fall within the lines of constitutional law, suggests Martin, who also noted that it would be possible — and constitutional — to write legislation that gives the INS the right to deport every alien. Students with visas, people waiting for asylum decisions, immigrants tending to sick family members — “anyone who isn’t a lawful permanent resident could be told to leave,” Martin says. “It would be a classic wartime maneuver. A law that allows [such restrictions during wartime] has been on the books for hundreds of years.”

The Justice Department’s decision not to ask for such sweeping changes shows a measure of moderation, Martin says. “There are far more sweeping things that haven’t been done but that could be done. I think we need to keep that in mind.”

But Martin’s point of view is not shared by critics who fear that legislators will vote to pass the new bill without thinking through the long-term implications. For example, neither of the proposed laws includes a so-called “sunset” provision, which would allow the new measures to expire after a set time period. Juliette Kayyem, the executive director of the Executive Session on Domestic Preparedness at Harvard’s Kennedy School of Government, says: “A lot of senators and representatives have huge problems with this. They don’t want to be on record opposing legislation that was in the wake of this disastrous event. They’ve been urging for more time.”